IN THE CASE OF:	  

		BOARD DATE:	   26 January 2010

		DOCKET NUMBER:  AR20090014300 


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 correction of his records to show he received a medical discharge instead of an under honorable conditions (general) discharge.

2.  The applicant states that after returning from Iraq, his disabilities became worse and while seeking treatment at an overcrowded and overstaffed hospital; his unit did not help him get into the Warrior Transition Battalion for treatment and rather antagonized him instead.

3.  The applicant provides a copy of the Department of Veterans Affairs (DVA) rating decision, dated 8 May 2009; copies of DVA medical records (progress notes), dated 17 June 2009; a copy of his DA Form 3349 (Physical Profile), dated 18 June 2008; a copy of his DD Form 2808 (Report of Medical Examination), dated 17 September 2008; a copy of his DD Form 2897 (Report of Medical Assessment), dated 17 September 2008; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 November 2008; and copies of various medical records, dated on miscellaneous dates throughout his military service, in support of his request.

4.  On 20 January 2010, the applicant submitted various medical documents, evaluation and assessment notes, therapy notes, psychology notes, and medical consults, dated on various dates in 2009 and 2010, in support of his request.




CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army for a period of 3 years and 18 weeks on 19 October 2005.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

2.  The applicant's records also show he served in Iraq from on or about 5 February 2007 to on or about 15 April 2008.  His awards and decorations include the National Defense Service Medal, the Global War on Terrorism Service Medal, the Iraq Campaign Medal with bronze service star, the Army Service Ribbon, and the Overseas Service Ribbon.

3.  On 15 September 2008, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine.

4.  On 13 November 2008, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct – commission of a serious offense (abuse of illegal drugs).

5.  On 13 November 2008, the applicant acknowledged receipt of notification of the commander's intent to separate him and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He was afforded the opportunity to consult with appointed counsel for consultation or a military counsel of his choice but waived doing so and elected not to submit a statement on his own behalf.  

6.  The applicant further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

7.  On 13 November 2008, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant had been counseled and through subsequent behavior, had demonstrated a lack of acceptance of rehabilitative measures. 

8.  On 13 November 2008, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of a general, under honorable conditions, character of service. 

9.  On 17 November 2008, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct – commission of a serious offense.  He directed the applicant be discharged and his service be characterized as under honorable conditions (general).  Accordingly, the applicant was discharged on 18 November 2008.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions by reason of abuse of illegal drugs.  This form further confirms that the applicant completed 3 years and 1 month of creditable active military service.

10.  On 1 July 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. 

11.  The applicant submitted the following documents in support of his request:

	a.  A copy of his DA Form 3349, dated 18 August 2008, that shows he had an anxiety illness of a temporary nature.

	b.  A listing of patient appointments that shows he had several appointments in July 2008 at the psychological clinic at Irwin Army Community Hospital, Fort Irwin, CA.

	c.  A copy of medical examination, dated 17 September 2008, that shows he underwent a separation physical and was diagnosed as having some depression and anxiety.

	d.  A copy of the DVA rating decision, dated 8 May 2009, that shows he was awarded service-connected disability compensation for post-traumatic stress disorder and degenerative disc disease.

	e.  Copies of various medical records, dated on miscellaneous dates throughout his military service that show he had symptoms of depression and anxiety.

	f.  Copies of various medical documents, evaluation and assessment notes, therapy notes, psychology notes, and medical consults, dated on various dates in 2009 and 2010.

12.  There is no indication in the applicant's records to show he was issued a permanent physical profile that would have warranted his entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no indication that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEBD) or referral to a physical evaluation board (PEB).

13.  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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  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 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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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.  It provides for MEBDs, which are 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

16.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

17.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies operating under different policies may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to shows he was medically discharged.

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that shows his symptoms of depression and/or anxiety were determined not to have met the medical retention standards of Army Regulation 40-501.  Accordingly, an MEBD never convened to document his medical status, duty limitations, and possible referral to a PEB.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge for physical disability.

3.  An award of a rating by another agency, such as the DVA, does not establish error by the Army.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) which affects the individual's civilian employability.

4.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of his or her office, grade, rank, or rating.  

5.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20090014300



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ABCMR Record of Proceedings (cont)                                         AR20090014300



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