IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110009730 


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 correction of the applicant's military records through a court remand to show:

	a.  that he was honorably discharged or

	b.  that he was either retired or separated due to a physical disability and

	c.  that he be paid disability benefits resulting from these corrections.

2.  Counsel states the applicant served in the U.S. Marine Corps in 2002-2003 and in the U.S. Army from 31 August 2004 to 19 November 2007.  He served overseas in support of Operation Iraqi Freedom for 15 months in 2006-2007 as an infantryman.  During this time, he experienced traumatic events and hardships in both his personal life and at war.  His wife had an extramarital affair and they separated.  His wife failed to pay bills resulting in $30,000.00 in debt when he returned from Iraq.  Counsel argues:

	a.  The applicant is entitled to an honorable discharge because his pattern of misconduct resulted from service-connected post-traumatic stress disorder (PTSD).  He experienced extreme episodes of anxiety and depression and had frequent panic attacks during and after his service in Iraq.  He experienced episodes of insomnia, suicidal ideations, and anger/aggression problems.  He was denied rest and recuperation leave during his 15-month tour in Iraq despite serious personal strife and mental instability.  Counsel concluded that the applicant's mental health issues were not properly treated by the military or recognized in his discharge.

	b.  The applicant is entitled to a medical retirement or a physical disability separation based on his severe service-connected PTSD rated at 30-percent disabling by the Department of Veterans Affairs (VA).

	c.  The military acted arbitrarily and capriciously by not referring the applicant to a medical evaluation board (MEB) and a physical evaluation board (PEB) to determine his fitness for duty.  The applicant's medical records are rife with information detailing his struggles with stress, anxiety, panic attacks, depression, suicidal thoughts, insomnia, and nightmares, as well as several physical conditions likely resulting from his mental/emotional state.  The military failed to treat the applicant's severe service-connected mental and emotional disorders.

	d.  The applicant would have been placed on the Temporary Disability Retired List had the military been willing to recognize his PTSD.  He would have received his military pay at 50 percent, had access to TRICARE medical care, and retained military base privileges.

	e.  The VA medical reports and examinations include indisputable evidence that the applicant's PTSD while in the service and from the day after his discharge was caused by and exacerbated by his service in Iraq.  It prevents or inhibits his ability to perform many tasks associated with daily living, including driving, shopping, grooming/bathing, participating in recreational activities/exercise, and going out alone.  Had the military appropriately commissioned an MEB/PEB, these diagnoses would have been available to determine an appropriate discharge.

	f.  The applicant is entitled to receive back pay with interest from November 2007 to the present because he should have been placed in a retired status based on his medical condition.

3.  Counsel provides copies of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty); VA Rating Decision, dated 27 June 2008; two Compensation and Pension Exam Reports, dated 27 March 2008 and 10 March 2010; VA medical documents; and the applicant's service medical records from 1 November 2004 through 11 October 2007.



CONSIDERATION OF EVIDENCE:

1.  On 17 September 2010, the U.S. Court of Federal Claims, Washington, DC, directed that the Board consider the applicant's claim of wrongful discharge, back pay, and any other matters that he presents in writing to the Army Board for Correction of Military Records regarding his separation.

2.  On 31 August 2004, the applicant enlisted in the Regular Army.  He was subsequently awarded military occupational specialty 11B (Infantryman) and assigned for duty at Fort Lewis, Washington.

3.  On 1 June 2006, the applicant was advanced to specialist/pay grade E-4.

4.  A Standard Form 600 (Chronological Record of Medical Care), dated 24 March 2006, indicates the applicant was referred to the Madigan Army Medical Center at Fort Lewis, Washington.  The identified minor concern was anger/aggression.  He underwent about 25 minutes of face-to-face interview/counseling time and was released without limitations.  No active medications found at the time.

5.  The applicant's records show that he served in Iraq from on or about 28 June 2006 to an unknown date in September 2007, a period of about 15 months.

6.  A Standard Form 600, dated 17 July 2006, indicates the applicant was prescribed a refill of citalopram (Celexa), an antidepressant drug prescribed for depression, anxiety, panic disorder, and PTSD.  He was released without limitations.

7.  A Standard Form 600, dated 6 September 2006, indicates the applicant was command-referred to the 47th Combat Support Hospital.  The record states the applicant had previously undergone a fitness program and started on Celexa, which had not helped.  The applicant reported that he did not want to be in Iraq.  The command had a concern for his overall safety from self-harm.  He underwent a mental health examination wherein the physician determined he did not have any severe mental health disease or defect.  He was rational.  He was extremely unhappy with his decision to join the U.S. Army.  He was despondent over leaving his wife and daughter at home.  He was experiencing this unhappiness subjectively as "depression," but did not have a treatable psychiatric condition.  The physician stated the applicant would remain dangerous as long as he does not get what he wants.  He should have no access to lethal means; he should be guarded by responsible members of his chain of command; and he should be separated from the U.S. Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for physical or mental conditions not amounting to physical disability.  He was continued on the same medication.

8.  On 23 September 2006, the applicant accepted nonjudicial punishment for communicating a threat on two separate occasions.  He was reduced to private first class/pay grade E-3.

9.  A Standard Form 600, dated 21 October 2006, indicates the applicant was referred for a follow-up evaluation for his adjustment disorder with disturbance of emotions and conduct.  Acute risk factors for suicide were acute occupational and family stressors.  His over-all risk of self-harm was low at the time of this assessment.  He was released with work/duty limitations that included no bolt in his rifle and close observation by unit personnel.

10.  A Standard Form 600, dated 30 October 2006, indicates that someone had seen the applicant was angry and urged him to go to sick call for help.  He stated he needed to be hospitalized because he could not take the screaming and the work any longer.  His grandmother was dying and his wife was using drugs and having relations with other men.  He produced a memorandum from his command and said it was not accurate.  The memorandum he produced indicated that reports of his grandmother dying could not be verified and that his brother knew nothing of this.  The applicant was released to his unit with continuation of his work/duty limitations.

11.  On 21 February 2007, the applicant underwent a behavioral health evaluation.  He was fully alert and oriented but displayed a depressed mood.  His thinking was clear, his thought content was normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He was capable of participating in separation processing.

12.  A Standard Form 600, dated 16 March 2007, indicates the applicant had a routine follow-up with a consulting physician resulting in his referral to the combat stress clinic.

13.  A Standard Form 600, dated 13 April 2007, indicates the applicant complained of abdominal pain.  He was diagnosed with constipation and interviewed concerning his anxiety disorder.  He denied having any suicidal or homicidal thoughts.  He was released without limitations.

14.  A Standard Form 600, dated 14 April 2007, indicates the applicant complained of "taking a bunch of clonipin [sic] [clonazepam (Klonopin) used to control seizures in epilepsy and for the treatment of panic disorder] last night."  He felt hopeless and wanted to end his life.  He did not think he had any other choice.  He felt really tired and anxious but that he was safe when he was with some people.  He was diagnosed with a single episode of major depression.  He was assigned "one-to-one" in the clinic.  In his unit, he was to be with a fellow member of his unit.  He did not have a bolt in his rifle.  The unit was made aware of the applicant's issues.

15.  A Standard Form 600, dated 22 April 2007, indicates the applicant complained of dizziness, headache, and epistaxis [nasal discharge, acute bleeding from the nose].

16.  A Standard Form 600, dated 5 May 2007, indicates the applicant was still experiencing epistaxis and Allegra (fexofenadine used to relieve allergy symptoms) and moist air at night was recommended.

17.  A Standard Form 600, dated 21 May 2007, indicates the applicant complained of a lower-back sprain from lifting weights.  He was placed on a physical profile prohibiting running, jumping, and sit-ups for 2 weeks.

18.  On 24 July 2007, the applicant accepted nonjudicial punishment for being disrespectful in deportment.  He was reduced to private/pay grade E-1.

19.  A DD Form 2796 (Post-Deployment Health Assessment), dated 13 August 2007, shows the applicant's responses indicated below.  The portion of the form dealing with the interview and health assessment is not completed.  The form was not signed or dated by any official.

* spent 1 or more nights in a hospital as a patient during his deployment due to testicle infection
* took Paxil (paroxetine used to treat depression, obsessive-compulsive disorder, and anxiety) and Ambien (zolpidem used to treat insomnia) during his deployment
* saw no one wounded
* was not engaged in direct combat
* felt he was in great danger of being killed
* had been bothered a lot during the previous 2 weeks with having little interest or pleasure in doing things, feeling down, depressed, or hopeless, and thoughts that he would be better off dead or hurting himself in some way
* he anticipated serious conflicts with his spouse, family, or close friends

20.  The available service medical records show the applicant's medical treatment at Madigan Army Medical Center after his return from Iraq.

	a.  A Standard Form 600, dated 21 September 2007, indicates he was suffering from distress resulting from marital discord during his deployment.  He was referred by the unit first sergeant for an initial psychological intake at the Behavioral Health Clinic.  He was found to be alert; oriented as to time, place, and person; well developed, nourished and hydrated; healthy appearing; active; and in no acute distress.  He was released without limitations with a follow-up appointment in 6 days.

	b.  A Standard Form 558 (Emergency Care and Treatment), dated 24 September 2007, indicates the applicant was unable to sleep and had frequent panic attacks since his return from Iraq.  He was diagnosed with anxiety and discharged to his quarters for 24 hours with instructions to return to the emergency room if he failed to improve in 24 to 48 hours.

	c.  A Standard Form 558, dated 28 September 2007, indicates the applicant needed a refill of medication for panic attacks.  This form notes he returned from Operation Iraqi Freedom this week and has an appointment with Behavioral Health Clinic on 4 October 2007.

	d.  A DD Form 2796, dated 28 September 2007, indicates no referrals.

	e.  A Standard Form 600, dated 11 October 2007, indicates he and his mother went to the Mental Assessment and Consultation Clinic because the Behavioral Health Clinic was too busy.  His mother indicated the applicant had called her and was saying he felt like killing himself.  The applicant emphatically denied wanting to kill himself and stated he had future plans after discharge.  The applicant was instructed to go to his walk-in sick call to be evaluated for anxiety medications.

21.  On 15 October 2007, the applicant acknowledged he was notified by his commander that he was initiating action to separate him from the service due to a pattern of misconduct.

22.  On 24 October 2007, the applicant consulted with counsel concerning his rights and elected not to make a statement in his own behalf.

23.  On 25 October 2007, the applicant's commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct.  Rehabilitative attempts included frequent mental health counseling, constant supervision, frequent performance counseling, and informal counseling by the company first sergeant and commander.  The Soldier did virtually everything in his power to no longer perform his job in an attempt to get sent home from Iraq.  The applicant communicated threats on two different occasions; failed to go to his appointed place of duty on 14 December 2006 and on 27 January 2007; made a false official statement on 14 December 2006; disobeyed noncommissioned officers (NCO's) on 13 January, 29 January, and 13 February 2007; and disrespected NCO's on 17 January, 13 February, and 2 July 2007.

24.  On 4 November 2007, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.

25.  Accordingly, the applicant was discharged on 19 November 2007 under honorable conditions.  He completed 3 years, 2 months, and 19 days of creditable active service.

26.  On 27 June 2008, the VA rendered a rating decision wherein the applicant was awarded service connection for PTSD with a physical disability rating of 30 percent.

27.  On 21 January 2009, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  After careful consideration of his record of service, the ADRB determined his discharge was both proper and equitable.  The ADRB denied his request.

28.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines the disability was the cause or substantial contributing cause of the misconduct or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

29.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  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.

30.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

31.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically 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, through his counsel, contends that his records should be corrected to show he was honorably discharged or he was either retired or separated due to a physical disability and that he be paid disability benefits resulting from these corrections.

2.  The applicant's commander stated the applicant did virtually everything in his power to no longer perform his job in an attempt to get sent home from Iraq.  The applicant communicated threats on two different occasions; failed to go to his appointed place of duty on 14 December 2006 and 27 January 2007; made a false official statement on 14 December 2006; disobeyed NCO's on 13 January, 29 January, and 13 February 2007; and disrespected NCO's on 17 January, 13 February, and 2 July 2007.  These multiple offenses within a 3-month period as well as an inadequate response to remedial training showed a clear pattern of misconduct.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.

5.  The applicant's service medical records clearly show he was referred to Madigan Army Medical Center prior to his deployment to Iraq because of his anger and/or aggression.

6.  During his deployment in Iraq, the applicant underwent a mental health examination wherein the physician determined he did not have any severe mental health disease or defect.  He was rational.  He was extremely unhappy with his decision to join the U.S. Army.  He was despondent over leaving his wife and daughter at home.  He was suicidal and experiencing unhappiness that was subjectively identified as "depression."  The applicant did not have a treatable psychiatric condition.  The physician stated the applicant would remain dangerous as long as he does not get what he wants.  The physician recommended that the applicant should be separated from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 5-17, for physical or mental conditions not amounting to physical disability.

7.  The governing regulations provide that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct or that circumstances warrant physical disability processing in lieu of administrative processing.  In the applicant's case, there is no evidence showing any of his misconduct was directly caused by a medical or mental condition.  There is no evidence in the applicant's service medical records indicating the applicant was not rational.

8.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

9.  In view of the above, the applicant's request should be denied.



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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________XXX_____________
                 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)                                         AR20110009730



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ABCMR Record of Proceedings (cont)                                         AR20110009730



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