IN THE CASE OF:	  

		BOARD DATE:	       20 October 2009

		DOCKET NUMBER:  AR20090010598 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 November 2008 to reflect that he was separated due to disability retirement or at the very least his character of service to show he received a fully honorable discharge.  The applicant further requests award of the Combat Infantryman Badge (CIB).

2.  The applicant states that his medical records and recommendations were completely disregarded.  He states that his chain of command chose to discipline him and issued him a less than honorable discharge rather than follow the findings and recommendations from medical and mental health professionals.
The applicant also states that he served his time in combat in Afghanistan.  He contends that others in his unit received the CIB right in front of him and he sees the fact that he was not awarded a CIB as a form of punishment.

3.  The applicant provides a copy of his DD Form 214, three pages of electronic mail correspondence, a response to a Congressional Inquiry, and a portion of a letter from a Regional Office of the Department of Veterans affairs as documen-tary evidence in support of this application.  He does not provide copies, but asks that his service personnel records, service medical records, and his records from the Department of Veterans Affairs Medical Center located in Syracuse, NY, also be taken into consideration.




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant identified a State Veteran Counselor from the New York State Division of Veterans' Affairs, located in Ogdensburg, New York as counsel on his application.  Counsel, in turn, forwarded a copy of the applicant's request to a Member of Congress in order to seek his assistance with gaining approval.  Counsel requests that the applicant's case be fairly and thoroughly reviewed as expeditiously as possible.

2.  Counsel states that he appreciates the Board's attention in this matter and looks forward to receiving a timely response.

3.  Counsel provides no documentary evidence in support of the applicant's request, but asks that his service personnel records and service medical records be used in support of his request as well as records from the Veterans Affairs Medical Center, Syracuse, New York.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the New York Army National Guard (NYARNG) on 20 August 2004 for a period of 8 years.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade the applicant attained was specialist (SPC)/E-4.  However, at the time of his discharge from the NYARNG the applicant held the rank/grade of private (PV2)/E-2.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-5, Section II, the regulation under which the ABCMR operates, states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available to them.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  In light of this fact, a copy of the applicant's request for an upgrade of his discharge has been forwarded to the ADRB for further consideration.  However, should his case not be resolved to his satisfaction and he still feels that an error or injustice exists; he may resubmit an application to this Board, including evidence of the denial of his request from the ADRB.  In view of the foregoing, the portion of this application which pertains to changing the characterization of the applicant's service to that of honorable will not be addressed any further in these Proceedings.

3.  The applicant’s record reveals a history of substance abuse that began prior to his enlistment in the NYARNG.  Under the provisions of the ARNG Enlistment Program, Enlistment Criteria Memorandum, the applicant was granted a waiver for the moral disqualification of Driving While Intoxicated (DWI) and Possession of marijuana to permit his enlistment into the ARNG.

4.  Item 2 (Alcohol and Drug) in Section VI (Statement of Understanding - Policies) of the applicant's Enlistment/Reenlistment Agreement, Army National Guard, Service Requirements and Methods of Fulfillment, dated 20 August 2004, shows the applicant acknowledged he understood:

	a.  the Army's policy on alcohol and drug abuse.

	b.  that any drug abuse by Soldiers was against the law it violated Army standards of behavior and duty performance and it would not be tolerated.

	c.  that alcohol abuse involving criminal acts or conduct detrimental to the Army or good order and discipline would not be tolerated.

	d.  that the illegal use of narcotics, or prescription drugs, or any use of mari-juana or other illegal substances by Soldiers could lead to criminal prosecution and/or discharge under other than honorable conditions.

	e.  that if he was identified for either alcohol or drug abuse, including the use or possession of marijuana, appropriate disciplinary and/or administrative action could be taken against him to include trial by court-martial or administrative separation from the Army.

5.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 23 November 2005, shows a Flag was initiated, effective 5 November 2005, because the applicant had committed an adverse action.  A DA Form 268, dated 23 November 2005, shows a Flag was removed, effective 7 April 2006, because disciplinary action had been taken.

6.  Office of the Adjutant General, State of New York, Latham, NY, Orders 
240- 390, dated 28 August 2007, show the applicant was ordered to active duty as a member of his Reserve Component (RC) unit in support of Operation Enduring Freedom, effective 27 September 2007, for a period not to exceed   400 days.  Orders 345-035, published by the same headquarters, dated             10 December 2008, amended Orders 240-390 to show the applicant's period of active duty was from 27 September 2007 through 21 November 2008.

7.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 13 July 2008, shows an investigation was conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to ascertain facts surrounding the applicant's absence without leave (AWOL) thoroughly and impartially, and to make findings and recommen-dations that were warranted by the facts to the appointing authority.  

	a.  During the course of the investigation, the applicant provided a statement, dated 1 August 2008.  The applicant stated, in effect, that:

		(1)  when he was returning from mid-tour leave in Prague, Czech Republic, he was pepper sprayed and robbed of all of his belongings to include his passport, military identification card, flight itinerary, laptop computer, and military uniform.  

		(2)  he reported the incident to both the Czech police and the U.S. Embassy.  The applicant stated he received poor service from the Embassy because they did not believe he was a U.S. Soldier and that the personnel were rude to both him and his parents.  The applicant continues that he wrote a letter to his former commander and requested his assistance with contacting his unit to inform them of his situation.  The former commander contacted the applicant's unit and arranged to book a flight for him on 24 June 2008.

		(3)  when he arrived in Kuwait, it took some time to replace the items that were stolen from him.  He added that he was feeling very depressed about the fact that he had been robbed, that he was going to be late in returning to his unit, and that he was going back to the war zone where the Taliban was trying to attack their patrols every day.

		(4)  he began feeling stress while in Kuwait waiting for his flight to Bagram, Iraq so he went to see a chaplain who, in turn, referred him to the medical clinic.  The applicant stated that he was examined by a doctor who recommended that the applicant speak to a mental health therapist.  He stated that he could either take an hour and a half bus ride to another clinic in Kuwait or seek assistance when he returned to Bagram Air Field (BAF); he chose to wait until he returned to BAF.

		(5)  once at BAF, he was seen by mental health doctors and prescribed Flouxetine (Prozac - a drug used to treat depression), and Zolpidem (Ambien - a drug used to treat insomnia).  The applicant stated that he was not suicidal, he did not want to hurt anyone, and he did not have any crazy thoughts.  He was just depressed and wanted to talk to someone about his problems and try to get some help.  He also stated that the doctor wanted him to return for a follow-up exam 5 days after his initial exam.

		(6)  all along, he was trying to contact his commander's cellular phone, with no luck.  The applicant attributed this to the fact that his remote firebase only had communication via cellular phone and the towers were always getting switched off.  He contended that he also sent electronic mail messages on a daily basis, but received no response.  On 8 July 2008, when he finally received a call from his unit, the applicant was informed that he was being carried in an AWOL status and needed to get back to Kandahar Air Field (KAF) as soon as possible.  He decided to miss his follow-up appointment with the mental health doctor and catch the next available flight back to KAF.

		(7)  he went to the flight terminal that evening to get his name on the flight manifest for the next day and was apprehended by the military police who, in turn, had him assigned to an escort to ensure he returned to KAF; as if he was incompetent and could not make it back by himself.

		(8)  this whole situation made him feel even more depressed.  He contended that he was already on an Army base and if his command really wanted to help him, they should have done so while he was in Prague.  He added that he did not understand what the problem was since his unit was aware of the facts that he had been robbed, that it was difficult to get a flight from BAF to KAF, and that he was going to miss his follow-up appointment with the mental health doctor.

		(9)  he was currently at Forward Operation Base Scorpion, where he was being investigated and treated like a criminal.  He added that his weapons had been taken from him and he was not scheduled to be seen by a doctor until two weeks after the date of his original follow-up appointment at BAF.  He concluded that his nightmares had returned, he was having difficulty sleeping, and he was not receiving the medical care or counseling services that he needed. 

	b.  The investigating officer, having carefully considered the evidence found, in effect that:

		(1)  the applicant's statements were his perceptions of the truth.  He opined that the applicant's written recollections of time and events were skewed from what they had discussed freely in an interview/conversation.



		(2)  the applicant's leave from combat was a drunken fest in Prague.  He further opined that through poor foresight and monetary mismanagement he found himself in a situation with no support and no access to money or identification.  Lacking experience and wisdom, the applicant exceeded his authorized leave time and missed movement.  He also lost positive control of his military identification and passport while in a foreign sovereign nation.

		(3)  the applicant's inability to present a proper military appearance and bearing exacerbated the poor response for assistance he received at the U.S. Embassy in Prague and his involvement with less than desirable people put him in scenarios where poor choices are made repeatedly.

		(4)  it was clear that the applicant understood the allotted time that he was authorized for leave and the consequences for returning late for duty.  It was clearly stated on his leave form that he was to return to duty within 15 days of signing out, which he failed to do, and his inability to return to his unit once on a military installation was malingering.

		(5)  the applicant's priorities of importance were incorrect and his choice of where and when to seek counsel from a religious leader was questionable.  At no time prior to his return to the military did the applicant question his mental state or his religious conviction.  His lack of maturity and experience indicated that he was “resonant” to face the consequences of his actions.

		(6)  there were glaring inconsistencies between both of his sworn statements and the interview.  It was impossible to determine the untruths, but there were glaring inaccuracies among all three statements.

		(7)  the applicant believed himself to be the victim of circumstances beyond his fault, in spite of all the efforts by the command (past and present), his family, and the Armed Forces which provided ample opportunity to avoid making wrong decisions.

		(8)  he did not find the applicant to be malicious in his actions, just poorly prepared for independence from a controlled environment.

	c.  The investigating officer recommended the applicant be subjected to disciplinary action under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) in the form of 2 weeks of extra duty, 2 weeks of restriction, a forfeiture of 2 weeks' pay, and reduction from the rank of SPC to the rank of private first class (PFC)/pay grade E-3.  He also recommended that the applicant be barred from reenlistment or discharged at that time.

8.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 14 August 2008, shows he accepted punishment under the provisions of Article 15, UCMJ for violation Article 86, UCMJ by absenting himself from his unit on or about 14 June 2008 and remaining so absent until 25 June 2008.  The punish-ment imposed was reduction to the rank of PV2 and a forfeiture of $917.00 pay for 2 months.  A DA Form 4187 (Personnel Action), dated 14 August 2008, shows the applicant was reduced to the rank of PV2 accordingly.

9.  Landstuhl Regional Medical Center (LRMC), Orders A-09-816980, dated 4 September 2008, show the applicant was ordered to report to Womack Army Medical Center, Fort Bragg, NC, effective 4 September 2008 for a period not to exceed 30 days.  These orders also show the applicant was assigned to his parent Reserve Component (RC) unit, but attached to the Warrior Transition Battalion at Fort Bragg for the purpose of medical evacuation (Military/Commercial Airlift) of RC Soldiers for continued medical care.

10.  Headquarters, Task Force Phoenix VI, Camp Phoenix, Kabul, Afghanistan, Memorandum, dated 6 September 2008, Subject:  Statement of Wartime Service - Combined Joint Task Force (CJTF) Phoenix VII, Afghanistan, shows the appli-cant served in the Central Asian Combined Joint Operations Area in support of Operation Enduring Freedom (OEF) during the period 22 December 2007 through 21 September 2008.  This memorandum also shows the applicant was entitled to wear the 27th Brigade Combat Team Shoulder Sleeve Insignia - Former Wartime Service and entitled to award of the Afghanistan Campaign Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Overseas Service Ribbon, and the NATO Medal.

11.  Womack Army Medical Center, Fort Bragg, North Carolina, memorandum, dated 9 September 2008, Subject:  Mental Health Evaluation of [applicant's name, age, and social security account number) shows he underwent a mental health evaluation on 9 September 2008.  The examining psychiatrist, in pertinent part: 

	a.  found the applicant's behavior to be appropriate, he was fully alert, his mood was good, his thinking process was both linear and goal-directed, he denied suicidal and homicidal thoughts, he had no hallucinations, and his memory was grossly intact. 

	b.  diagnosed the applicant with adjustment disorder with mixed disturbance of emotions and conduct, polysubstance abuse, and alcohol dependence.

	c.  determined the applicant had the mental capacity to participate in any proceedings brought against him and he was mentally responsible and able to distinguish between right and wrong.

	d.  advised the applicant's commander that he should be considered poten-tially dangerous to himself and should be closely monitored by unit personnel, that he should not have access to weapons or ammunition on or off post, that he should not consume alcoholic beverages and the command should issue an order forbidding any use of alcohol on or off post, and that he should be provided with enhanced unit support to ensure all treatment recommendations were followed.

	e.  made the following administrative recommendations regarding the applicant's potential for continued service:

		(1)  his state of emotional and/or behavioral dysfunction, at the time, was of such severity that his ability to perform military duties was significantly impaired.  This condition met the criteria set forth in Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 5-17 for administrative separation.  The examining psychiatrist also opined that the applicant's condition at the time would not respond to command efforts at rehabilitation within the foreseeable future and that the command should consider this to be in the best interest of the Soldier, as well as the unit.

		(2)  he was not suitable for continued access to classified material and any clearances should be rescinded.

		(3)  continued military service would keep the applicant at risk and he would continue to be a burden on the unit.

		(4)  if the command's rehabilitative efforts had not or did not result in behavioral/functional improvement, the command should consider pursuing administrative separation under the appropriate regulation.  Subsequent or additional mental health evaluations were not required prior to 9 March 2009 unless the command desired reevaluation sooner.

		(5)  the applicant should be released from active duty and returned to his parent unit to undergo separation.



12.  A DA Form 268, dated 19 September 2008, shows a Flag was initiated, effective 19 September 2008, because the applicant had committed an adverse action.

13.  The applicant provides a copy of three pages of electronic mail correspondence exchanged between an ombudsman and an Army Alcohol and Substance Abuse Program (ASAP) clinical counselor on 3 and 4 November 2008.  This correspondence shows, in pertinent part, that on 23 September 2008, the clinical counselor completed a Substance Abuse Assessment on the applicant and determined that he needed intensive inpatient substance abuse treatment.  In spite of her recommendation that the applicant be enrolled in immediate inpatient treatment through ASAP, his command disagreed and it was decided that a case manager would coordinate the applicant's inpatient treatment through Veterans Affairs (VA) Services.

14.  Womack Army Medical Center, Department of Behavioral Health memorandum, dated 19 November 2008, Subject:  24 Hour Watch shows the applicant was evaluated at the Womack Army Medical Center, Department of Behavioral Health and the results of the evaluation indicated he was at some risk for self-harm or harm to others.  The risk level at the time did not warrant hospitalization, but it was recommended that he be placed under a 24 hour watch for both support and safety.

15.  The applicant's DD Form 214 shows that on 21 November 2008 he was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, due to misconduct (serious offense), with a general discharge.  He was transferred to the control of his ARNG unit.  

16.  The applicant's National Guard Bureau (NGB) Form 22 (Departments of the Army and the Air Force, NGB, Report of Separation and Record of Service) shows that on the same date, he was discharged from the NYARNG and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve) to complete his remaining Reserve obligation.

17.  There is no evidence in the available records which shows that the applicant was referred to the Army Physical Disability Evaluation System (PDES) for consideration by either a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) prior to his discharge.

18.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the CIB.

19.  Item 15 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded) of the applicant's NGB Form 22 for the period ending 21 November 2008 does not show award of the CIB.

20.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the CIB by proper authority while serving on active duty.  The OMPF also contains no evidence that the applicant served in an infantry MOS while assigned to a qualifying infantry unit of brigade, regimental, or smaller size while participating in active ground combat with enemy forces.

21.  The applicant provides Womack Army Medical Center, letter, dated 27 April 2009, which shows the commander provided a response to an inquiry from a Member of Congress on behalf of the applicant.  The Member of Congress forwarded a copy of the aforementioned letter to the applicant on 11 May 2009.  In his letter, the commander stated:

	a.  the applicant had been assigned to the Warrior Transition Battalion (WTB) and Womack Army Medical Center from 9 September 2008 through 21 November 2008 for evaluation and treatment.  The commander continued that after his assignment to the WTB, the applicant became non-compliant with his comprehensive treatment plan.  He habitually missed accountability formations, medical appointments, mandatory Alcohol and Substance Abuse counseling, and other counseling sessions.  He was involved in numerous public disturbances, resisting apprehension by military authorities, simple assault on a military police officer, multiple charges of disobeying a lawful order, and destruction of Government property charges.  The commander further stated that the applicant misrepresented his rank on his uniform after his parent unit had reduced him from specialist to private and that he was under the influence of alcohol during the duty day on numerous occasions.  In addition to these issues the applicant went AWOL from the Army several times.

	b.  the applicant was not diagnosed with Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury.  He never displayed suicidal behaviors, and he had no medical condition that would limit his ability to discern right from wrong and he possessed sufficient mental capacity to be responsible for his actions.

	c.  the WTB cadre did everything possible to encourage the applicant's positive behavior including counseling and mentoring sessions, multiple enrollments in ASAP, regular room inspections, implementing 24 hour buddy watch, and the assignment of a battle buddy.

	d.  the applicant did not respond to the Army's tireless efforts to rehabilitate him and it was determined that his continued military service would put him and his fellow Soldiers at risk and negatively affect the unit's good order and discipline.  As a result, the applicant was separated from the service with a general discharge and he was afforded the opportunity to receive medical care through TRICARE and the VA.

22.  The applicant provides a portion of a  letter from the VA Regional Office, Buffalo, New York, dated 29 May 2009, which shows, in pertinent part, that the VA determined the applicant suffers from service connected PTSD and assigned him a 100 percent disability rating, effective 22 November 2008.

23.  During the processing of this case, an advisory opinion was rendered by the Chief, Personnel Division, NGB, Arlington, Virginia, dated 26 May 2009:

	a.  The NGB, Personnel Division in coordination with the NGB, Division Surgeon's Office and the NYARNG, Military Personnel Office (MILPO), recommended disapproval of the applicant's request to change his discharge to a medical disability discharge [or retirement], in effect, due to the fact that he was never referred to the PDES for consideration by either an MEB or PEB.  According to Chief, Surgeon's Office, the Fort Bragg Warrior Transition Center provided the proper medical care to the applicant and he will remain eligible to receive medical care through the VA with the general discharge he received upon separation.  The NYARNG MILPO confirmed the applicant underwent both a pre-separation medical examination and psychiatric evaluation prior to his separation from active duty.  The advisory official cited Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-31, which states "the causes for referral to an MEB 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."  The advisory official also cited Army Regulation 600-85 (The Army Substance Abuse Program), chapter 10, paragraph 10-6 which, in pertinent part, states "Soldiers who are rehabilitation failures will be processed for administrative separation when the Soldier is enrolled in ASAP and the Commander determines that further rehabilitation efforts are not practical (for example, a rehabilitation failure)."

	b.  The National Guard Bureau, Personnel Division recommended approval of the applicant's request for award of the CIB "due to the Soldier participate in unit mission prior to his alleged injustice and all his unit members received the CIB."

	c.  On 1 June 2009, a copy of the advisory opinion was forwarded to the applicant for information and to allow him an opportunity to submit comments or a rebuttal.  Although the applicant failed to respond by the established suspense date, the applicant's father submitted an unsolicited response on behalf of the applicant, in which he did not mention the CIB.

	d.  On 11 August 2009, an ABCMR staff member contacted the NGB staff member shown as the point of contact on the advisory opinion to inquire about the evidence he had to base his favorable recommendation for award of the CIB. The NGB staff member stated that his recommendation was based upon a telephone conversation he had with Colonel B_______n, Director, Military Personnel, NYARNG.  The ABCMR staff member contacted Colonel B_______n and he was informed that the applicant's former unit was still working to determine the applicant's eligibility for award of the CIB.  On 19 August 2009, the applicant was made aware of this new information and he was afforded the opportunity to provide a rebuttal within 30 days.  The applicant was also informed that in order for his father's letter to be considered by the Board, he needed to provide a written and signed statement requesting such action.  As of 8 October 2009, the applicant failed to provide a response.

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

25.  Chapter 61, Title 10, United States Code (USC) provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The United States Army Physical Disability Agency, under the operational control of the Commander, United States Army Human Resources Command, Alexan-dria, VA, is responsible for operating the Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  A Soldier is referred to an MEB when a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service.  The medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40.  Soldiers are referred as a result of:

	b.  an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupational specialty.  Referral to an MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  a Headquarters Department of the Army action.  The Commander, United States Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  United States Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

26.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. 
This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEB Liaison Officer for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the United States Army Physical Disability Agency to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

27.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convic-tions by civil authorities.  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 appro-priate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

28.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

29.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on award of combat and special skill badges, and paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that there are three basic requirements for the CIB.  The member must hold and serve in an infantry MOS; he must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and he must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  It further stipulates that combat service alone is not a sufficient basis to support award of the CIB.

30.  Army Regulation 15-185, in pertinent part provides that the ABCMR will decide case on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to reflect he was separated due to disability retirement and that he was awarded the CIB.

2.  The applicant’s history of substance abuse began prior to his enlistment in the NYARNG.  PTSD or any other condition not related to alcohol consumption were not substantiated or even brought forth as a concern by any medical professional associated with the applicant.  In light of the fact that it appears all of the applicant's mental issues were the direct result of his substance abuse, he did not warrant referral to an MEB or PEB under the provisions of Army Regulation 40-501.  Therefore, he was appropriately discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  Notwithstanding the advisory opinion, the applicant's contention that his record should be corrected to show he was awarded the CIB was carefully considered and determined to lack merit at this time.

5.  Although the evidence of record shows the applicant possessed an infantry MOS, there is no evidence that he served in an infantry MOS while assigned to a qualifying infantry unit of brigade, regimental, or smaller size and that he was personally present and participated while the unit was engaged in active ground combat with enemy forces.  Additionally, the record contains no evidence that the applicant was ever recommended for or awarded the CIB.  The applicant has provided no documentary evidence to the contrary.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  Therefore, there is no basis upon which to grant this portion of the applicant's requested relief.

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.

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)                                         AR20090010598



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ABCMR Record of Proceedings (cont)                                         AR20090010598



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