IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090017252 


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 retired from active duty based on a permanent disability.

2.  The applicant states, in effect, that he defers to counsel.

3.  The applicant provides no additional documentary evidence in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was retired from active duty based on a permanent disability.

2.  Counsel states the applicant was separated with a general discharge due to two incidents of driving under the influence (DUI) without being processed through the Physical Disability Evaluation System (PDES).  His DUIs were the result of him self-medicating for post-traumatic stress disorder (PTSD) symptoms.  He should have been medically retired due to PTSD.  He should have also been rated for sleep apnea and ankle pain resulting from arthroscopic surgery while on active duty.

3.  Counsel provides a petition for relief; the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty); and Department of Veterans Affairs (VA) rating decision, statement of case, and medical records.

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.  A Standard Form (SF) 89 (Report of Medical History), dated 25 January 2001, completed by the applicant at the time of his enlistment examination shows in response to item 25 (Physician's Summary and Elaboration of All Pertinent Data) the examining medical doctor indicated there were no medical or surgical problems.  He also indicated that questioning of the applicant revealed alcohol abuse based on an incident of DUI in 1997.

3.  An SF 88 (Report of Medal Examination), dated 25 January 2001, shows the examining medical doctor found the applicant qualified for enlistment in the Army.

4.  The applicant enlisted and entered active duty in the Regular Army for a period of 4 years on 13 February 2001.  Upon completion of training he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).

5.  The applicant served overseas in Korea from 28 July 2001 to 23 July 2002. He also served in Iraq in support of Operation Iraqi Freedom from 19 January through 22 July 2003.

6.  Headquarters, 3rd Infantry Division, Fort Stewart, Georgia, Orders 254-0010, dated 10 September 2004, as amended by Orders 257-0025, dated 
13 September 2004, assigned the applicant to the U.S. Army Transition Center for separation processing and discharge on 17 September 2004.

7.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

8.  There is no evidence the applicant was referred to a Medical Evaluation Board or Physical Evaluation Board for evaluation of any medical condition(s).

9.  The applicant's DD Form 214 shows he was discharged under honorable conditions on 17 September 2004 in accordance with the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct - commission of a serious offense:

	a.  He had completed 3 years, 7 months, and 5 days of net active service.

	b.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Commendation Medal (2nd Award), Army Achievement Medal, Presidential Unit Citation (Army), National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, and Army Service Ribbon.

10.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge.

11.  In support of the application, counsel provides the following documents:

	a.  A Petition for Relief in which counsel provides an outline of his argument.  

   (1)  He summarizes the applicant's military service and asserts the 
applicant was processed for separation due to misconduct as a result of two DUI convictions.  He points out the incidents arose after the applicant's return from service in a hostile fire zone and can be attributed to PTSD.
 
   (2)  He states the VA initially assigned the applicant a 30% disability rating
for PTSD effective 14 November 2005.  The VA increased his disability rating to 50% effective 10 May 2007.

   (3)  He notes the applicant concedes he has suffered from a substance
abuse/alcohol abuse disorder that has afflicted him since the onset of the PTSD.  However, despite having been sober since 4 May 2007, he continues to suffer from the symptoms of PTSD.

   (4)  Counsel asserts the applicant should have been processed through
the PDES, which would have made it clear that any alcohol abuse by the applicant was essentially self-medication to deal with the symptoms of PTSD.

   (5)  He states the evidence available to the ABCMR is sufficient to merit
setting aside the applicant's adverse administrative discharge and placing him on the Temporary Disability Retired List (TDRL) effective 17 September 2004 with an honorable character of service.  He adds that a disability rating should be assigned of not less than 30% for PTSD.

   (6)  He states the applicant also suffered from two other separately
unfitting conditions prior to being separated from active duty:

   (a)  Obstructive Sleep Apnea (OSA) which resulted in the VA assigning
the applicant a 50% disability rating for the condition.

   (b)  Chronic right ankle pain secondary to arthroscopic surgery that
was performed in June 2004.  He adds that the applicant is seeking treatment from the VA for this injury and awaiting assignment of a disability rating.

	b.  He also provides the applicant's VA rating decision, statement of case, and medical records:

   (1)  On 2 March 2006, the VA granted the applicant service-connection for
PTSD (30%) effective 14 November 2005.  The following VA ratings were continued:  sleep apnea (30%), residuals of a broken right ankle (10%), low back pain (0%), and pseudo folliculitis barbae (30%).

   (2)  On 18 November 2008, the VA reevaluated the applicant's PTSD
(then rated as 30% disabling) and increased the rating to 50% effective 10 May 2007.

12.  Army Regulation 635-200, in effect at the time, 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:

	a.  Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  It provides 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, under honorable conditions discharge or an honorable discharge, if such is merited by the Soldier's overall record.

	b.  Paragraph 14-12 provides conditions that subject Soldiers to discharge for misconduct.  It provides for discharge based on commission of a serious military 
or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is (or would be) authorized for the same or a closely related offense under the Manual for Courts-Martial.

	c.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the Army separation process.  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.  In addition, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

14.  Army Regulation 15-185 (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 and his counsel contend that the applicant's records should be corrected to show he was retired from active duty based on a permanent disability due to PTSD.

2.  The applicant's entrance medical examination documents that he had a history of alcohol abuse prior to entering the military.  In fact, the applicant acknowledged a DUI incident in 1997 to the examining medical doctor:

   a.  Counsel acknowledges the applicant was discharged based on two DUI incidents after he returned from service in a hostile fire zone in July 2003. Counsel contends that the applicant suffered from a substance/alcohol abuse disorder that has afflicted him since the onset of the PTSD.
   
   b.  The applicant acknowledged he abused alcohol prior to his entry into the military.  Thus, the record does not support counsel's contention that the applicant's DUI incidents only arose after his return from service in a hostile fire zone [emphasis added]."

3.  The mere presence of impairment, in and of itself, does not justify a finding of unfitness by the Army because of physical disability.  Moreover, there is insufficient evidence to show the applicant should have been processed by the PDES.  The fact that the VA, in its discretion, awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.

4.  Absent evidence to the contrary, it is concluded the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct - commission of a serious offense, was warranted by the nature of his offense; discharge was effected in accordance with applicable law and regulations; and the applicant's rights were protected throughout the separation process.

5.  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 and his counsel fail to provide such evidence.  As a result, the applicant's discharge is presumed proper and equitable.

6.  The evidence shows two incidents of DUI during the period of service under review.  Thus, the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

7.  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)                                         AR20090017252



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ABCMR Record of Proceedings (cont)                                         AR20090017252



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