BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100012412 


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 that his characterization of service be upgraded to honorable and he be shown to have been separated due to a physical disability.

2.  The applicant states his current discharge is unjust and inequitable.  An honorable discharge by reason of physical disability is warranted based on the approved Medical Evaluation Board (MEB) that was completed prior to his discharge.

3.  The applicant provides a 24 October 2006 Psychiatric Narrative Summary, a 31 October 2006 MEB Proceedings, a 6 November 2003 Physical Profile, a 6 November 2006 Physical Condition Duty Evaluation, a 5 December 2006 Physical Evaluation Board (PEB) Proceedings, a Social Security Administration disability award letter, 10 civilian police reports or court orders, three Department of Veterans Affairs (VA) rating decision documents, and an Oklahoma Department of Public Safety suspension order.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be afforded all due consideration for his requested relief

2.  Counsel states the applicant has adequately set forth his contentions and arguments for the requested relief.

3.  Counsel provides no additional supporting documentation.
CONSIDERATION OF EVIDENCE:

1.  The applicant's service medical records and the majority of the documentation related to his administrate separation are not contained in his integrated Personnel Electronic Record System file. 

2.  The applicant's service is shown as follows:

* enlisted - Regular Army, from 9 April 1996 through 8 April 1996
* enlisted - inactive US Army Reserve (USAR), from 9 April 1996 through 21 January 1997
* enlisted - Oklahoma Army National Guard (OKARNG), from 22 January 1997 through 12 August 2000
* commissioned officer - OKARNG, from 13 August 2000  through 5 December 2001 with five months of active duty service
* commissioned officer - USAR, from 6 December 2001 through 25 April 2007 with service in Iraq from 6 April 2003 through 5 April 2004

3.  A 6 March 2006 Lawton Oklahoma Police report states an officer was waved down by a woman, not the applicant's wife, who said she was in a fight with her “boyfriend.”  When the officers were led to the applicant, he was shirtless and intoxicated in a field across from the woman’s residence.  After informing the police officers that he lived with his wife, not at the residence of the woman who had described him as her boyfriend, he was told to leave.  He pretended to walk away; however, when the police circled the block and returned to the residence a few minutes later, they observed him attempting to enter the front door of the residence he had just been told to leave.  When the police approached him and asked him to step away from the door, he created a disturbance, resisted arrest, and was disrespectful toward the arresting officers.

4.  On 11 March 2006, the applicant received a negative general counseling for two violations of Lawton City Code of disturbing the peace and resisting an arresting officer.  As a result of this, he was restricted to the limits of Fort Lawton pending further disposition and ordered not to make any physical or verbal contact with the person at the residence of his arrest and not attempt to go to the person’s address. 

5.  On 12 May 2006, the applicant was given a Letter of Reprimand, based on the 6 March incident, of creating a disturbance, resisting arrest, and disrespect toward arresting officers.

6.  On 18 August 2006, the applicant was notified of initiation of elimination proceedings under the provisions of Army Regulation 600-8-24, chapter 4, by reason of misconduct, moral or professional dereliction.  The applicant was directed to show cause for his retention in the Army because of substandard performance, misconduct and derogatory information.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  

7.  On 18 September 2006, the applicant submitted a rebuttal to the 18 August 2006 Board of Inquiry Notification.  He requested that the proceedings be discontinued.  In his statement he counters the points cited for the inquiry and ends with noting he had an MEB pending, with diagnoses of Post Traumatic Stress Disorder (PTSD) and Major Depression. 

8.  A 24 October 2006 Psychiatric Narrative Summary for Medical Board provides the following:

	a.  the applicant was a self referral with a complaint of being depressed and under a great deal of stress;

	b.  in the present history section the applicant reported that when he first reported for duty in Kuwait he was rejected by the officers he had to work with.  He developed depression, isolated himself, and felt like he was a "chicken in a pack of wolfs."  He felt he was doomed to always mess up.  After his unit moved to Iraq he felt even more isolated and devalued and related that he withdrew even more.  At one point he seriously considered suicide by shooting himself but did not carryout the action.  He witnessed injuries and death from improvised explosive devices and had come under sniper and mortar fire on a regular basis. His depression persisted after returning from Iraq and, though not working more than minimally, he was promoted to captain.  He stated he had been in treatment for over two years; 

	c.  he was diagnosed as suffering from major depression with atypical features.  He had decreasing ability to perform as an officer with decreased capacity for intimacy; and

	d.  the conclusion was he did not meet retention standards and should be referred for processing through the MEB/PEB. 

9.  A 31 October 2006 MEB Proceedings found the applicant was suffering from chronic episodic major depression, a compressed disc in the lumbar region, and arthritis of the hands and knees.  He was referred to a PEB. 

10.  A 6 November 2006 Physical Condition Duty Evaluation memorandum states the applicant was suffering from suicidal tendencies that prohibited him from carrying a weapon and performing his duties as an officer.

11.  A 30 November 2006 Physical Condition Duty Evaluation memorandum states the applicant had his security clearance denied and he was not performing his assigned duties.  He was not working normal hours due to his pending release and participation in the Army Career and Alumni Program (ACAP).

12.  A 5 December 2006 PEB determined that the applicant was suffering from a major depressive disorder requiring psychotropic medications and outpatient treatment.  He was rated as 30 percent disabled and it was recommended he be placed on the Temporary Disability Retired List.  His medical conditions of a compressed disc and arthritis of the hands and knees were not found to be unfitting.  The applicant concurred with the PEB findings on 7 December 2006.

13.  On 20 December 2006, the applicant appeared, with counsel, before a Board of Inquiry (Show Cause Board).  The Board found that the applicant had been counseled in Iraq for not attending mandatory battery training events, for consistently not attending mandatory unit PT, and not performing some assignments.  Following his return to Fort Lawton, OK, he was found to have resisted arrest by civilian police for causing a public disturbance, being intoxicated at the time of arrest, not following instructions of police officers, and failure to appear at a scheduled court date.  He was also found to have submitted a security clearance form with false information and used the name of his senior rater to obtain an interim security clearance.  Additionally, he received an LOR for the incident involving the resisting arrest and had engaged in an adulterous relationship prior to serving in Iraq.  The Board recommended the applicant be separated with a UOTHC discharge. 

14.  On 11 January 2007, the applicant's counsel submitted a rebuttal to the elimination actions.  Counsel stated the seven counts of substandard performance and three counts of misconduct occurred after the applicant returned from Iraq.  He noted the medical expert stated that all of the applicant's problems relating to work and his social life were caused by his PTSD.

15.  On 30 March 2007, the Army Board of Review for Eliminations reviewed the applicant's case based on both the findings of the Show Cause Board and the findings of the MEB/PEB.  The determination was made that the Government had made its case for elimination.  It's recommendation was that the applicant be eliminated from the Army with a UOTHC characterization of service.

16.  On 09 April 2007, the Acting Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Board of Review for Eliminations and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.

17.  On 25 April 2007, the applicant was discharged in accordance with Army Regulation 600-8-24, paragraph 4-2B.  He received a UOTHC characterization of service with a narrative reason for separation of unacceptable conduct.  

18.  On 14 July 2007, the Social Security Administration found the applicant disabled under its rules effective 25 April 2007.

19.  On 31 July 2007, the VA granted the applicant a 30 percent evaluation for PTSD, a 10 percent evaluation for lumbar strain, and noncompensable evaluations for a fracture of his right fifth finger and left fourth toe.  

20.  On 27 March 2008, the Army Discharge Review Board upgraded the applicant's characterization of service from UOTHC to general under honorable conditions, based on their determination that the applicant’s characterization of service was too harsh.  It was stated that while the applicant’s misconduct is not condoned, the file contains evidence to support the applicant’s claim of severe depression and/or PTSD sustained during his deployment to Iraq as a Brigade Civil Affairs Officer.  As a result, his overall length and quality service, to include his combat service, and the supporting medical documents, mitigated the discrediting entries in his service record.  Accordingly, the applicant’s characterization of service be upgraded to general, under honorable conditions.  However, the reason for discharge service remains both proper and equitable.

21.  On 14 July 2008, the applicant was charged with assault on his "girlfriend" by pinning her to the floor and cutting off half of her hair.

22.  A 24 July 2008 police report shows the applicant was charged with destruction of property by smashing the windows on his girlfriend's car, scarring the door, hood and trunk with his key, and slashing her tires.

23.  On 9 October 2008, two Protective Orders were issued against the applicant. 

24.  On 24 November 2008, the VA granted the applicant an increase to 70 percent for his PTSD, a 10 percent evaluation for residuals of his fractured right fifth finger, and a 10 percent evaluation for residuals of his fractured left fourth toe.

25.  On 13 December 2008, the applicant was jailed for careless driving, driving under the influence (DUI) of alcohol, and eluding a police officer by motor vehicle.

26.  On 29 December 2008, the VA granted him individual unemployability and entitlement to dependents education assistance. 

27.  A Fort Comanche County District Court criminal record shows the applicant was convicted of breaking and entry, eluding a police officer, reckless driving, DUI, and assault and battery (domestic abuse).

28.  On 6 June 2009, the State of Oklahoma suspended the applicant's driving privilege for six months due to his DUI conviction. 

29.  Army Regulation 600-8-24 sets forth the basic authority for officer transfers and discharges.  This regulation provides that: 

	a.  when a commissioned officer is being processed for elimination action under chapter 4, and it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed in accordance with the provisions of both this regulation and through the MEB/PEB system;  

	b.  in the case of an officer processed for separation or retirement under chapter 4 whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence; 

	c.  Chapter 4 outlines the policy and procedures for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security; 

	d.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service met the standards of acceptable conduct and performance of duty; and 

	e.  a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

30.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-4 states a commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.  The Secretary of the Army will determine the proper disposition of the case.

31.  Title 38, United States Code, sections 310 and 331, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his current discharge is unjust and inequitable.  An honorable discharge by reason of physical disability is warranted based on the approved MEB that was completed prior to his discharge.

2.  The MEB/PEB found that the applicant was suffering from major depression at a 30 percent disability level.  Had he not also been processed for separation due to misconduct, he most likely would have been honorably retired due to a physical disability. 

3.  While the applicant clearly had a mental condition that was found unfitting, he was discharged for his misconduct after full consideration of all factors by the Army Board of Review for Eliminations and by the Secretary of the Army through the Acting Deputy Assistant Secretary (Army Review Boards). 

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge, directed by the ADRB, and the reasons therefore are appropriate considering all the facts of the case.

5.  Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue and VA ratings do nothing to demonstrate an error or an injustice in the discharge.  Any argument that his PTSD was the cause of his misconduct is greatly weakened by the fact that his misconduct (engaging in an adulterous relationship) started before he deployed.

6.  Therefore, it is not appropriate to grant the applicant an upgrade 

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)                                         AR20100012412





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ABCMR Record of Proceedings (cont)                                         AR20100012412



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