IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090016007 


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 was found unfit and medically discharged
* a disability rating of 50 percent for post-traumatic stress disorder (PTSD)
* a disability rating of 30 percent for post-concussion disorder

2.  The applicant states after being injured in an improvised explosive device (IED) blast in Iraq, he was misdiagnosed and not properly processed by a Medical Evaluation Board (MEBD) and a Physical Evaluation Board (PEB).  If properly processed, he would have been found to be below medical retention standards.  Instead, he was administratively separated for misconduct caused by his injury.

3.  The applicant provides documentation through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following:

* Correction of the applicant's military record to change his type of separation from discharge to medical retirement for being unfit because of physical disability
* Correction of the applicant's military record to change his characterization of service from under other than honorable conditions to honorable

2.  Counsel states the following:

* The applicant was in good health prior to incurring a service-related head injury.
* He was injured in an IED blast while on active duty and began experiencing symptoms of PTSD and traumatic brain injury (TBI).
* He went absent without leave (AWOL) to seek relief from his symptoms and to attend his wedding.
* He returned to active duty and continued to experience symptoms of PTSD and TBI.
* He was not given a chance for rehabilitation before the administrative separation process was commenced.
* The Department of Veterans Affairs (VA) characterized the applicant's service as honorable and granted him service-connected disability compensation.
* The VA determined he was unemployable as a result of his service-connected disability.
* Medical evidence shows the applicant suffered from PTSD and TBI as a result of his combat injury in Iraq.
* The Army erred in failing to refer him to an MEBD, which should have in turn referred his case to a PEB.
* The applicant is entitled to a PEB disability rating of at least 50 percent.
* Factors mitigating his AWOL offense include his medical symptoms, issues he had with his chain of command allowing him to seek medical care, and concern he might miss his wedding.

3.  Counsel provides 41 documents named in a list of exhibits.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 23 July 2003 and was trained in and awarded military occupational specialty 11B (Infantryman).

3.  An Enlisted Record Brief shows he served in Iraq during the period 4 August 2004 through 29 July 2005 and he was awarded the Combat Infantryman Badge.

4.  A DA Form 4187 (Personnel Action) shows the applicant's duty status was changed from present for duty to AWOL effective 16 November 2005.  Additional DA Forms 4187 show he was dropped from the rolls of the Army on
17 December 2005 and returned to military control on 9 February 2006.

5.  A DA Form 3822 (Report of Mental Status Evaluation), dated 23 February 2006, shows the applicant was psychologically cleared for administrative separation.

6.  On 18 April 2006, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL during the period 16 November 2005 until 9 February 2006.  His punishment was reduction to private (PV1)/E-1, forfeiture of $636.00 pay per month for 2 months, and extra duty and restriction for 45 days.

7.  A DD Form 2808 (Report of Medical Examination) shows the applicant was found medically qualified for retention on 28 April 2006.

8.  The applicant's separation packet shows the following:

     a.  On 8 June 2006, he acknowledged notification from his immediate commander that he was being recommended for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct) with an under other than honorable conditions discharge.

     b.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that, as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his right to consideration of his case by an administrative separation board, his right to personal appearance before an administrative board, and his 


right to representation by counsel.  He was advised of his right to submit a conditional waiver of his right to have his case considered by an administrative board.  He chose not to submit statements in his own behalf.

     c.  On 14 August 2006, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, and directed an under other than honorable conditions discharge.  On 7 September 2006, the applicant was discharged accordingly.  He completed 2 years,
10 months, and 21 days of creditable active military service.

9.  Counsel provides a statement from the applicant that shows the following:

     a.  On 18 January 2005, he was a passenger in a vehicle when an IED exploded on the driver's side of the road.  All passengers were thrown from the vehicle.  He was knocked unconscious.

     b.  In the days immediately following the incident, he had recurring headaches.

     c.  In the months after his injury in Iraq, he frequently felt dazed and confused.  He cannot remember details of the incident and he still experiences dizziness, memory problems, balance problems, ringing in his ears, irritability, and problems sleeping.

     d.  On 16 November 2005, he was feeling depressed and hopeless and wanted to go to the medical clinic for help.  This resulted in a confrontation with his chain of command because his superior was angry that his visit to the medical clinic might make him late for formation.  He decided to go anyway, received a call from his superior informing him he would be charged with AWOL, and, concerned he would be restricted to post and miss his upcoming wedding, decided to drive to his fiancée's home and not return until after his wedding.

     e.  Following his return to military control on 9 February 2006, he visited numerous Army medical professionals to seek assistance for his depression and PTSD symptoms.  He was eventually diagnosed with post-concussion syndrome.

     f.  Prior to the administrative separation process, he was not advised of any plans to attempt to rehabilitate him or any efforts to help him avoid administrative separation.

10.  Counsel also provides the following:  

     a.  A copy of a Standard Form (SF) 600 (Chronological Record of Medical Care) showing the applicant underwent a pre-deployment mental health screening in June 2004 and did not meet risk criteria and had no issues or concerns prior to deployment.

     b.  A copy of an SF 600-E (Trauma Casualty Evaluation and Treatment Form) showing the applicant underwent an examination following an IED incident on
18 January 2005.  He was diagnosed with a mild concussion.  On 20 January 2005, he underwent a follow-up examination and reported recurrent headaches.  He was directed not to participate in contact sports and remain on light duty. 

     c.  A DD From 2796 (Post-Deployment Health Assessment) showing a referral was indicated for combat/operational stress reaction and mental health.

     d.  A Fort Carson Mental Health Careline questionnaire showing the applicant sought treatment for depression and headaches on 31 October 2005.

     e.  An SF 600, dated 10 November 2005, showing the applicant sought help with stress management and was referred to a PTSD support group.

     f.  Statements made to the VA by the applicant and his wife confirming his symptoms and events leading to his discharge.

     g.  SFs 600 documenting medical appointments in the months prior to his separation showing he was released to his unit without restrictions on each occasion he sought medical care.

     h.  A copy of an e-mail, dated 22 August 2006, showing an officer in the Office of the Staff Judge Advocate (OSJA) requested review of the applicant's records to determine if he would qualify for an MEBD.  

11.  During the processing of this case, on 30 December 2009, an advisory opinion was received from the Director, Health Policy and Services, Office of The Surgeon General.  The advisory official states the following:

     a.  The applicant has the past medical history of concussion and post-traumatic stress symptoms.

     b.  There is no indication his medical presentation was so debilitating to warrant an MEBD as there is no documentation of extensive and intensive treatment to include hospitalizations or significant deficiency to perform his duties secondary to a medical condition.

     c.  Based on the information available at the time of his discharge in 2006, he met the retention standards under Army Regulation 40-501 (Standards of Medical Fitness).

12.  On 30 December 2009, a copy of the advisory opinion was furnished to the applicant's counsel for information and to allow her the opportunity to submit comments or a rebuttal.  Neither the applicant nor counsel responded.

13. Army Regulation 635-200 states when the medical treatment facility commander or attending medical officer determines a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEBD in accordance with Army Regulation 40-400 (Patient Administration).  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEBD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his record was carefully considered and not supported by the evidence in this case.

2.  The applicant and counsel have not provided evidence showing the applicant did not meet medical fitness standards for retention prior to going AWOL or during the period his administrative separation was being processed.  Though the available medical records show he was diagnosed with PTSD and post-concussion syndrome, they also show he was returned to duty with no restrictions each time he sought treatment.  Records also show he was found psychologically and physically fit for retention.  In the absence of evidence showing the applicant was unfit to perform his duties, there is no basis for correcting his record to show he was medically discharged.

3.  The applicant’s separation for misconduct was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on his record of indiscipline, which includes being AWOL from
16 November 2005 through 9 February 2006, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant was duly discharged with the characterization of service deemed appropriate by the separation authority.

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)                                         AR20090016007



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ABCMR Record of Proceedings (cont)                                         AR20090016007



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