IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100016351 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the Board’s denial of the applicant's request to correct his records to show he was medically retired due to post traumatic stress disorder (PTSD).  Additionally, he requests the following:

	a.  Records be corrected by voiding his administrative separation due to the fact that he was never evaluated to determine whether he met mental health retention standards prior to receiving his administrative separation.

	b.  To be granted a permanent disability retirement for PTSD with a disability rating of at least 50 percent.

	c.  As an alternative, to be placed on the temporary disability retirement list (TDRL) for disability processing.

2.  Counsel states concurrently with the applicant being admitted to Red River Hospital for the second time, his command initiated separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12c, separation for misconduct - commission of a serious offense.  Counsel states the basis for the separation action was his use of 

cocaine and failure to obey a lawful order to submit to a urinalysis.  He explains that on 27 November 2007, the administrative separation board determined the applicant should be discharged from the Army with an honorable characterization of service.  

3.  Counsel offers the board recommended that the discharge be suspended for 3 months so he could receive treatment and counseling for his PTSD and related symptoms.  The board also recommended that he be discharged under the provisions of Army Regulation 635-200, chapter 5-17, other designated physical or mental conditions.  However, he adds, the separation authority refused to accept the board's recommendations and he was separated under the provisions of Army Regulation 635-200, chapter 14-12c.

4.  Counsel argues the Army failed to properly evaluate whether the applicant met the requisite mental health retention standards of Army Regulation 40-501 (Standards of Medical Fitness) before he was separated.  As a result, an inaccurate record was created for the separation board and the applicant was denied the opportunity to have his mental health retention fitness reviewed under Army Regulation 40-501 and subsequent consideration of his condition before a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). Additionally, counsel states the commander serving as the General Court-Martial Convening Authority (GCMCA) was not given the opportunity to abate the separation proceedings and to evaluate whether the applicant's PTSD was the cause, or a contributing cause, of his misconduct.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090007032, on 9 June 2009.

2.  Counsel's argument concerning the Army's failure to properly evaluate whether the applicant met the requisite mental health retention standards of Army Regulation 40-501 before he was separated was addressed in his previous case. However, for clarification, the information as cited on page 17, paragraphs 3 and 6 in Docket Number 20090007032, in effect, stated the following:

   a.  Paragraph 3.  The applicant was diagnosed, in pertinent part, with alcohol dependence, cocaine abuse, and PTSD and he received extensive treatment for these medical conditions.  A medical professional opinion found that he would 

not respond to command efforts at rehabilitation or to any treatment methods then currently available in any military behavioral health facility.  He “adamantly refused to discuss what happened in Iraq since his first visit” and avoided all services which were geared towards PTSD.  Thus, medical officials could not write an MEB on him because he refused to discuss matters with medical personnel which would verify experiences/incidents. 

   b.  Paragraph 6.  On 10 December 2007, the Chief, Community Mental Health and Family Mental Health Service (CMHS), Reynolds Army Community Hospital, Fort Sill, Oklahoma, advised the separation authority that he confirmed the CMHS team agreed that the applicant should be discharged under the provisions of Chapter 14, and recommended not to proceed with a discharge under the provisions of Army Regulation, chapter 5, paragraph 5-17, because the applicant's behavior could not be proven to be caused by any psychiatric illness. 

3.  Army Regulation 635-200, chapter 1 paragraph 1-33 (Disposition through medical channels) states in pertinent part, that disposition through medical channels takes precedence over administrative separation.  When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7, 14, or 15, does not meet the medical fitness standards for retention of Army Regulation 40–501, chapter 3, he/she will refer the Soldier to a MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.  If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s GCMCA and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the Army Physical Disability Evaluation System (PDES) when action under the UCMJ has not been initiated, and one of the following has been determined:

   a.  The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.
   
   b.  Other circumstances of the individual's case warrant disability processing instead of further processing for administrative separation.
   
4.  Army Regulation 40-501 provides medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required.  Soldiers with these conditions who do not meet the 

required medical standards will be evaluated by an MEB and referred to a PEB.  Those conditions, in pertinent part, are as follows:

   a.  Mood disorders.
   
* Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization
* Persistence or recurrence of symptoms necessitating limitations of duty or duty in a protected environment
* Persistence or recurrence of symptoms resulting in interference with effective military performance

   b.  Anxiety, somatoform, or dissociative disorders.
   
* Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization
* Persistence or recurrence of symptoms necessitating limitations of duty or duty in a protected environment
* Persistence or recurrence of symptoms resulting in interference with effective military performance

   c.  Dementia and other cognitive disorders due to general medical condition.

* persistence of symptoms or associated personality change sufficient to interfere with the performance of duty or social adjustment
   
5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures for establishing the Army PDES.  Chapter 7 outlines procedures for administration and processing of Soldiers whose name are on the TDRL.  Paragraph 7-2 states that a Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, USC 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is one of substance abuse and a failure at all attempts to treat this abuse.  Although his discharge was for misconduct, specifically related to multiple positive urine drug tests (cocaine), his problem with alcohol was deemed at least as problematic by CMHS and the Army Substance Abuse Program.

2.  Counsel argues that the applicant was denied the opportunity to have his mental health reviewed to determine whether he met retention standards under Army Regulation 40-501 and subsequent consideration of his condition before an MEB and a PEB.  The evidence shows he "refused to discuss what happened in Iraq since his first visit” and he “avoided all services which were geared towards PTSD."  Therefore, the CMHS could not refer him to an MEB.  On 12 October 2007, the medical official conducting his separation medical examination determined he was qualified for service and separation under the provisions of Chapter 14.  Additionally, the CMHS team agreed with discharging him under the provisions of Chapter 14 and recommended not to proceed with a discharge under the provisions of Army Regulation, chapter 5, paragraph 5-17 because the applicant's behavior could not be proven to be caused by any psychiatric illness.

3.  Further, the evidence shows the Army did everything within reason to rehabilitate this Soldier.  He was continued on active duty after multiple drug offenses.  He was sent to a drug rehabilitation center on two occasions only to reoffend.  He received the benefit of a team approach from the CMHS providers who were involved with his command at several levels in an attempt to save him from himself.  Lastly, he was separated from the Army with an honorable characterization of service.

4.  There is no evidence in the available record and the applicant and his counsel did not provide any to show he was unfit to serve because of PTSD or that he could not abstain from illegal drugs due to PTSD.  The record supports the probability that he had PTSD, but it was not an unfitting condition and it was not the cause of his drug addiction or his multiple failures at rehabilitation.  Therefore, the overall merits of the case, including counsel's argument, are insufficient as a basis for the Board to reverse its previous decision.  

5.  Additionally, since the applicant is not entitled to disability retirement, his name is not authorized to be placed on the TDRL.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090007032 dated 9 June 2009.



      _______ _ 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)                                         AR20100016351



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ABCMR Record of Proceedings (cont)                                         AR20100016351



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