IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100016388 


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 as follows:

* placing him on the temporary disability retired list (TDRL) for post-traumatic stress disorder (PTSD) instead of discharge in lieu of trial by court-martial 
* expunging from his records the attempted murder charge that was not prosecuted 

2.  The applicant states he received a criminal charge that was not prosecuted by St. Robert, MO (Pulaski County) and he was released to the Army.  The Army pursued court-martial charges but stopped after receiving information of his mental state of PTSD and other associated conditions.  The prosecutor did not want him to be referred to a medical evaluation board (MEB) or a physical evaluation board (PEB) but continued his discharge in lieu of a court-martial.  The "Forensic Opinion and Criminal Responsibility" of his sanity board states he suffered from a severe mental disease or defect at the time of the events in question as per the results of the psychiatric interview and mental status examination.  The sanity board concluded that he suffered from severe mental disease or defect and he was unable to appreciate the wrongfulness of his misconduct.  His separation physical also stated he suffered from PTSD, post-concussion syndrome, and many other injuries during his active duty time.  Furthermore, the Department of Veterans Affairs (VA) awarded him service-connected disability compensation for PTSD, migraine headaches, and back pain.  Lastly, his active duty illnesses and injury support his sanity board.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Background check memorandum
* Approved memorandum of discharge
* VA Rating Decision
* Page 3 of his 3-page DD Form 2807-1 (Report of Medical History)
* Brigade Surgeon's Spot Report
* Adult Preventive and Chronic Care Flow-sheet
* Chronological Record of Medical Care
* Sanity Board Proceedings

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) on 15 June 2001 and he held military occupational specialty 92Y (Unit Supply Specialist).  He executed a 4-year reenlistment on 28 August 2003 and a 5-year reenlistment on 27 January 2006.  He attained the rank/grade of staff sergeant (SSG)/E-6. 

2.  His records also show he served in Iraq from 25 October 2005 through 28 October 2006.  He was awarded the Army Commendation Medal (4th Award), Army Achievement Medal, Army Good Conduct Medal (2nd Award), National Defense Service Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Iraq Campaign Medal with campaign star, Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon (3rd Award), Combat Action Badge, Driver and Mechanic Badge with Driver W - Vehicle Clasp, and German Army Marksmanship Badge (Silver).

3.  On 17 July 2008, court-martial charges were preferred against the applicant for:

* One specification of attempting to murder his wife, by firing a .357 caliber pistol at her on or about 7 July 2008
* One specification of unlawfully shooting a firearm at his wife, on or about 7 July 2008 

4.  On 12 September 2008, a Staff Judge Advocate (SJA) reviewed the Article 32 investigation (not available for review with this case) and its recommendation that indicated the charges should be disposed of by a special court-martial.  The 
attorney opined that the allegations in the charges and their specifications were 

warranted by the evidence and recommended the Commanding General (CG) refer the charges and their specifications to a general court-martial.  The CG referred the charges to a general court-martial on the same date.

5.  On 15 September 2008, the applicant acknowledged receipt of the court-martial charges and their specifications which had been referred by the CG to a general court-martial.

6.  A copy of the applicant's request for discharge is not available for review with this case.  However, it appears that subsequent to this date, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions.  He was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, he would have indicated he was making this request of his own free will and that he had not been subjected to any coercion whatsoever by any person.  He would have also acknowledged he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He would have further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request would have stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 24 October 2008, the applicant underwent a sanity board that convened in accordance with the Rule for Courts-Martial 706(b)(1), Manual for Court-Martial, at the Community Mental Health Service, Fort Sill, OK.  The military psychiatrist and the health services psychologist indicated the applicant's current diagnosis was as follows:

* Axis I		PTSD, in partial remission
* Axis II		None Noted
* 
Axis III	Asthma, knee and shoulder pain; temporal lobe epilepsy
* Axis IV	Mild to moderate stressors
* Axis V		GAF (Global Assessment of Functioning) - 70

His diagnosis at the time of the offense was:

* Axis I		Delirium due to acute illness, chronic sleep deprivation and overuse of caffeinated energy drink; PTSD
* Axis II		None Noted
* Axis III	Asthma, knee and shoulder pain; chronic sleep deprivation, and acute illness;  temporal lobe epilepsy
* Axis IV	Mild to moderate stressors - marital problems, work stressors
* Axis V		GAF - 50

9.  The sanity board opined that at the time of the applicant's offense, he suffered from severe mental disease or defect that impaired his ability to appreciate the nature and quality of the wrongfulness of his alleged conduct.  The extent to which the events the applicant was being prosecuted for actually occurred and to which degree, was a matter for the trier of fact.  However, results of the psychiatric interview, mental status examination, and review of collateral data established that the applicant suffered from a severe transient mental disease or defect at the time of the events in question.  He, therefore, was as a result of severe mental disease or defect unable to appreciate the wrongfulness of his conduct.

10.  On 16 December 2008, consistent with the applicant's chain of command's recommendations and that of the SJA, the convening/separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by a court-martial in accordance with chapter 10 of Army Regulation 
635-200 and directed the issuance of a general discharge.  The separation authority also ordered the charges and specifications dismissed without prejudice to the Government upon execution of the discharge.

11.  The applicant was accordingly discharged on 8 January 2009.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by a court-martial with an under honorable conditions discharge.  He had completed 7 years, 6 months, and 24 days of creditable active military service during this period of enlistment.  This form also shows in:

* Item 23 (Type of Separation) - "Discharge"
* Item 26 (Separation Code) - "KFS"
* 
Item 28 (Narrative Reason for Separation) - "In Lieu of Trial by Court-Martial"

12.  The applicant's records reveal the following:

* He successfully completed the Common Core Phase, Unit Supply Specialist Basic NCO Course from 18 September to 3 October 2007
* He successfully completed Phase II of the Unit Supply Specialist Basic NCO Course from 19 October to 27 November 2007
* He successfully completed the 40-hour Force XXI Battle Command Brigade and Below Blue Force Tracking Operator's Course from 14 to 19 November 2007
* He received the Lead Motivator Award for displaying the highest degree of dedication, commitment, and motivation, during Phase II of the Basic NCO Course
* His NCO Evaluation Reports (NCOER) for the period 1 November 2006 through 31 December 2006 reflects a rating of fully capable by his rater and among the best by his senior rater
* The same NCOER shows he passed his Army Physical Fitness Test (APFT) with a score of 278 out of 300 and he met the height and weight standards
* His NCOER for the period 1 October 2007 through 31 December 2007 reflects he was rated fully capable by his rater and a superior rating by his senior rater
* The same NCOER reflects a "PASS" entry for the APFT with comments such as "demonstrated mental and physical endurance and stamina to accomplish challenging missions assigned to the S-4 section" 
* None of his NCOERs listed a physical profile or indicated his duty performance was hindered by a physical profile
* He was fully qualified for reenlistment and received multiple performance, achievement, and service awards

13.  The applicant submitted:

	a.  Page 3 of his 3-page DD Form 2807-1, dated 22 December 2008, which shows he was being treated for PTSD.  He also had right arm, shoulder, hip, and knee pain; migraine headaches; asthma; back pain; right ear problems; flat feet; post-concussion syndrome; and other medical conditions.

	b.  VA rating decision, dated 26 May 2009, which shows the VA awarded the applicant service-connected disability compensation for PTSD, migraine 

headaches, low back pain, right shoulder disorder, left knee pain, hearing loss, tinnitus, seizure disorder, asthma, post-concussive syndrome, cervical spine condition, left foot condition, right foot condition, and several other conditions.

	c.  Brigade Surgeon's Spot Report, dated 2 March 2006, which shows he had a laceration to the right elbow but returned to duty and a chronological record of medical care, dated 2 March 2006, which shows he complained of ringing in his ears subsequent to a mortar attack

	d.  Adult Preventive and Chronic Care Flow sheet, dated 5 September 2003, which shows he received medications for asthma.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Paragraph 1-33 of Army Regulation 635-200 states except in separation actions under chapter 10 and as provided in paragraph 1-33b of this regulation, disposition through medical channels takes precedence over administrative separation processing.  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 (Army Regulation 40-501 (Standards of Medical Fitness)), the individual will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB.  

	a.  If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined:

		(1)  The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

		(2)  Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

	b.  The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated.

	c.  The GCMCA’s signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB.  Copies of the GCMCA’s decision will be furnished to the unit commander and included in the administrative separation proceedings.  The unit commander will suspend processing of the administrative separation action pending the PEB.  If the Soldier is found physically fit, the administrative separation action will be resumed.  If the Soldier is found physically unfit, the administrative separation action will be abated.

	d.  Disability processing is inappropriate if the conditions in b(1)(a) and (b) of Army Regulation 635-200 do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent.  Accordingly, disability processing is inappropriate in separation actions under chapter 10.

16.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "KFS" is the correct code for Soldiers separating under the provisions of chapter 10, Army Regulation 635-200.

17.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 office, grade, rank, or rating.  

18.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.


19.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

20.  Paragraph 4-3 of Army Regulation 635-40 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB if the GCMCA finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

21.  DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures under References (a) and (b) for retiring or separating Service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions; and authorizing a fitness determination for Ready Reserve members. Section E3.P3.4 of DODI 1332.38 states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  Common Military Tasks:  Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.

	b.  Physical Fitness Test:  Whether the member is medically prohibited from taking the respective Service's required physical fitness test. 

	c.  Deployability:  When a member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States. 

	d.  Special Qualifications:  For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible.

22.  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%.  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 less than 30%.

23.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an 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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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 VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

24.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System.  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the official military personnel file (OMPF).  Once placed in the OMPF, the document becomes a permanent part of that file.  Documents will not be removed from a fiche or moved to another part of the file unless directed by an appropriate authority.  Case files for approved separations, including elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service, are filed with allied documents in the service portion of the Performance Section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The sanity board indicated he had the mental capacity to understand and participate in his defense. 

2.  He was discharged under the provisions of chapter 10, Army Regulation
635-200 in lieu of trial by court-martial due to misconduct.  Absent the misconduct, there was no fundamental reason to prefer court-martial charges against him.  Having sufficient mental capacity, he elected to be discharged in lieu of a court-martial.  The only valid narrative reason for separation permitted under this paragraph is "In Lieu of Trial Court-Martial."  Therefore, he received the appropriate narrative reason for separation.

3.  His PTSD diagnosis is not in question.  However, a Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his office, grade, rank, or rating.  This is not the case here.  The applicant's completion of various training courses and NCOERs clearly show he continued to perform the duties required of his grade or office with successful results.  He passed all of his APFT's, met the height and weight standards, was rated fully capable/successful and he was fully able to perform the duties of his grade and/or military occupational specialty.  

4.  Furthermore, the medical records that were provided by the applicant do not appear to be complete.  The available records show he was being treated for PTSD.  There is no medical evidence available to show he was ever placed on a permanent physical profile subsequent to his service in Iraq, and thus no evidence to show he was unfit to perform his duties because of this condition.  

5.  The available medical records show he underwent a medical examination in December 2008 prior to discharge that noted various routine illnesses and/or conditions.  However, nothing in his medical records indicates he was diagnosed with an injury or disease at the time of discharge that would have warranted his entry into the PDES.  Because all the evidence of record shows he was fully capable of performing his duties up until his discharge, there was no reason to consider him for entry into the PDES.  As such, he did not undergo an MEB.  Without an MEB, 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 or separated/retired for physical disability.

6.  Further, although the sanity board noted he suffered from a transient severe mental disease or defect that impaired his ability to appreciate the nature and quality of the wrongfulness of his conduct, it appears the GCMCA did not consider this as a compelling reason to proceed with PDES processing or an MEB/PEB.  

7.  Having been found fully qualified for separation or retention after his chain of command initiated separation action against him, a review was therefore not required under Army Regulation 635-40.  In the absence of evidence to the contrary, it is presumed that the GCMCA was aware of the requirements of Army Regulation 635-200 and acted accordingly.  There is no evidence that the GCMCA abused his/her discretion in this case.

8.  Soldier's charged with an offense which could result in a punitive discharge are prohibited from disability processing.  Likewise, Soldiers processed for administrative separation for which an under other than honorable discharge is authorized, cannot be referred for disability processing unless the GCMCA determines extenuating circumstances exist.  The applicant has presented no compelling evidence that shows other circumstances warranted his disability processing over administrative separation.

9.  With respect to the VA rating decision, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

10.  The applicant has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.

11.  With respect to the removal of the charge sheet from his records, by regulation, case files for approved separations, including separations for the good of the service and allied documents are filed on the performance section of the OMPF.  The applicant's charge sheet is an allied document of his approved case separation for the good of service.  It is properly filed and there is no reason to remove it. 
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)                                         AR20100016388



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ABCMR Record of Proceedings (cont)                                         AR20100016388



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