IN THE CASE OF:	  

		BOARD DATE:	 17 April 2012 

		DOCKET NUMBER:  AR20110019184 


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, in effect, correction of his records to show he was retired from military service based on permanent physical disability.

2.  The applicant states he was awarded the Purple Heart and sent home on leave from Iraq after his convoy was attacked in November 2003.

	a.  Due to his behavior, his father took him to the Naval Air Station, Pensacola, Florida.  The mental health examiner told him he was suffering from the traumatic events that occurred in Iraq.  He was evaluated over the course of a week and instructed to report to Fort Benning, Georgia.

	b.  When he reported to Fort Benning, he was informed he was in an absent without leave (AWOL) status.  He did not understand this, since he had been receiving treatment at a military medical treatment facility (MTF).

	c.  He was sent to Fort Knox, Kentucky, where he was discharged.

	d.  Since his discharge, he has learned from representatives of the Department of Veterans Affairs (VA) that his discharge was improper.

	e.  He has been unable to obtain medical records from the Pensacola Naval Air Station or any of his Army medical records.

3.  The applicant provides copies of a Report of Survey, an Army Discharge Review Board (ADRB) decision, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and VA Rating Decisions with VA 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.  The applicant enlisted in the Army National Guard of the United States and the Alabama Army National Guard on 12 August 1999 for a period of 8 years.  He was awarded military occupational specialty 11B (Infantryman).

3.  The applicant was ordered to active duty on 15 March 2003 for a period of 365 days in support of Operation Iraqi Freedom.

4.  A memorandum, 1165th Military Police Company, Baghdad, Iraq, dated 2 January 2004, subject:  Immediate Return to Theater, shows the applicant's commanding officer ordered the applicant to return to his unit in the theater of operations (Iraq) not later than 29 January 2004.

	a.  The commander noted the applicant was granted 15 days of "environmental" leave (beginning 30 October 2003) to help alleviate personal problems at home.  However, the applicant failed to return to the theater of operations or provide any documentation to his unit to request a hardship or medical discharge.

	b.  The applicant was advised that failure to comply with the order would result in disciplinary action under the Uniform Code of Military Justice (UCMJ).

5.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or his request for discharge for the good of the service based on conduct triable by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.

6.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 70-11, dated 10 March 2004, reduced the applicant from private first class/E-3 to private/E-1 effective 9 March 2004.  The authorities cited were:

	a.  Army Regulation 635-200, chapter 10; and

	b.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 7 (Enlisted Promotion and Reduction of Army National Guard Personnel), paragraph 7-1e, to advance, promote, laterally appoint, and reduce Soldiers called or ordered to active Federal service under Title 10, U.S. Code, section 12301(d), in support of contingency operations and Title 10, U.S. Code, sections 12302 and 12304, for the call or order.

7.  On 19 March 2004, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.

8.  On 7 February 2008, the ADRB considered the applicant's case and determined the character of service was too harsh and as a result it was inequitable.  The ADRB upgraded the applicant's character of service to general under honorable conditions.  The ADRB also determined the reason for the applicant's discharge was proper and equitable.

9.  The applicant's DD Form 214 shows he entered active duty on 15 March 2003 and he was discharged in lieu of trial by court-martial on 19 March 2004 in accordance with Army Regulation 635-200, chapter 10, with his service characterized as general under an honorable conditions.  He completed 9 months and 26 days of net active service during this period.

10.  The applicant provides the following documents:

	a.  A DA Form 4697 (Report of Survey) with enclosures and a memorandum, 1165th Military Police Company, Baghdad, Iraq, dated 19 August 2003, subject:  Personnel Status as of 1615 Hours, show the applicant sustained abrasions and burns to his hands from an ambush and he was taken to the 407th Brigade Support Battalion MTF for observation.

	b.  Headquarters, Combined Joint Task Force-7, Baghdad, Iraq, Permanent Orders 020-013, dated 20 January 2004, awarded the applicant the Purple Heart for wounds received as a result of enemy action on 19 August 2003.

	c.  Copies of his VA medical records.

		(1)  An initial evaluation for post-traumatic stress disorder (PTSD), dated 13 June 2008, shows the examiner concluded that the applicant's PTSD incurred during active duty service in Iraq was the result of the event on 19 August 2003 and his discharge from the Army.

		(a)  The mental status examination noted memory loss or impairment (both short and long term); major depressive disorder, moderate severity.

		(b)  His assessment of the applicant's PTSD was "Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, stressor criterion – combat."

		(2)  A VA Rating Decision, dated 2 July 2008, shows service connection for PTSD with major depressive disorder (also claimed as shock) was granted with a disability rating of 50 percent effective 20 April 2007.  A decision on entitlement to compensation for other claimed medical conditions was deferred.

		(3)  On 9 July 2008, he was seen for a biopsychosocial assessment at the PTSD Outpatient Clinic.  He was diagnosed with PTSD, major depressive disorder, recurrent (moderate severity); combat exposed.  He was to return for treatment planning to address his symptoms.

		(4)  A VA Form 2507 (Compensation and Pension Exam Report), dated 23 July 2008, shows the applicant was on a patrol when his vehicle was hit by a rocket-propelled grenade, he was thrown out of the vehicle, and he has experienced constant back pain since then.

		(a)  It also shows a note from 19 August 2003 which indicates he had shrapnel to his right leg and blunt trauma to his back (from the blast).

		(b)  The medical records also describe the applicant's scars.

		(c)  He was diagnosed with right and left knee joint sprains and a peripheral retinal hole in his left eye.

		(d)  X-rays revealed several tiny foreign densities projecting in the subcutaneous tissue (believed to be shrapnel).

		(5)  On 30 July 2008, a traumatic brain injury (TBI) second-level evaluation was conducted.  It concluded the applicant had symptoms of depression and PTSD and there were findings consistent with TBI.  A follow-up plan for consultation was submitted.

		(6)  A VA Rating Decision, dated 14 August 2008, shows service connection was granted effective 20 April 2007 for the following:

* migraine headaches – 30 percent
* right knee joint sprain – 10 percent
* left knee joint sprain – 10 percent
* scar, left thigh – 10 percent
* scar, ear – 0 percent
* low back sprain (claimed as back injury) – 0 percent
* scars, right arm, lower back, right thigh, right shin, right deltoid – 0 percent

		(7)  On 19 August 2008, he was informed that he was rated 80-percent service-connected for disability.

		(8)  On 23 October 2008, he was seen for evaluation of TBI.  The findings were consistent with TBI.

		(9)  On 9 September 2009, the applicant was treated for swelling of his right hand (third digit); he denied recent trauma.

		(10)  On 16 March 2010, he was seen for a fast heart rate and chest pain; symptomatology highly suggestive of mitral valve prolapse.  He was scheduled for a cardiology consultation.  He was also diagnosed with hypertension (high blood pressure) and it shows his medications.

		(11)  On 31 August 2010, he returned to physical therapy and complained of left knee pain.  He was given an outpatient physical therapy plan for therapeutic exercises and ultrasound treatment to his left knee.

		(12)  A radiology report, dated 9 September 2010, shows a history of a shrapnel injury and the primary diagnostic code for major abnormality.

	d.  A VA Illiana Health Care System, Danville, Illinois, letter, from A____ C____, Staff Psychologist, PTSD Clinic, shows the applicant was her patient for individual psychotherapy for the treatment of PTSD and major depression from 9 July 2008 to 4 October 2010.  She states, "Given that my first meeting with him was 4 years post-discharge, it is reasonable to assume that his symptoms were of greater severity when he was first discharged from the Army.  It is also reasonable to assume that given his reported symptom set at the time of discharge, that his refusal to return to Iraq after being on leave was likely due to a PTSD reaction, since one of the primary symptoms of PTSD is persistent avoidance of stimuli associations with the trauma."

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.

	a.  If a Soldier is found unfit because of physical disability, it provides for referral of the Soldier to a medical evaluation board and disposition according to applicable laws and regulations.

	b.  Paragraph 4-1 (Soldiers Charged with an Offense) provides that a member who is under investigation for or charged with an offense under the UCMJ for which he could be dismissed or given a punitive discharge may not be referred for disability processing.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

13.  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 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This 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 contends that his records should be corrected to show he was retired from military service based on permanent physical disability because he sustained injuries in Iraq that led to medical conditions that resulted in his failure to return to his unit in Iraq and, as a result, was improperly discharged.

2.  The evidence the applicant provides with respect to his VA medical records and rating decisions was carefully considered.

	a.  He is receiving service-connected disability compensation from the VA for:

* PTSD and major depressive disorder – 50 percent
* migraine headaches – 30 percent
* right knee joint sprain – 10 percent
* left knee joint sprain – 10 percent
* scar, left thigh – 10 percent
* scar, ear – 0 percent
* low back sprain (claimed as back injury) – 0 percent
* scars, right arm, lower back, right thigh, right shin, right deltoid – 0 percent

	b.  The fact that the VA has awarded the applicant a disability rating for PTSD and major depressive disorder (and his other medical conditions) is a prerogative exercised within the policies of that agency.  It does not establish error or injustice in the decision made by the Army to administratively discharge the applicant in lieu of trial by court-martial.

3.  There is no evidence of record and the applicant provides insufficient evidence to show he was medically unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating prior to or at the time of his discharge.  Moreover, the evidence of record shows that a Soldier who is under investigation for or charged with an offense under the UCMJ for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Thus, the evidence does not support the applicant's contention that he was improperly discharged.

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge and narrative reason directed appear to have been appropriate.

5.  Therefore, there is no basis to support the applicant's contention that the narrative reason of his discharge should be changed to show he was retired from military service based on permanent physical disability.

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.



      ____________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)                                         AR20110019184



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ABCMR Record of Proceedings (cont)                                         AR20110019184



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