BOARD DATE: 3 April 2012
DOCKET NUMBER: AR20110019680
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 an upgrade of his discharge to honorable.
2. The applicant states, prior to being discharged he was being seen weekly by mental health doctors because he was having difficulty readjusting. The Department of Veterans Affairs (VA) has diagnosed him with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI).
3. The applicant provides copies of his application to the Army Discharge Review Board and a VA compensation decision.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 5 October 2004. He completed the training requirements and he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist) and MOS 92S (Shower, Laundry, and Clothing Repair Specialist).
2. He was deployed to Iraq from 24 November 2004 to 16 November 2005 and from 10 February 2007 to 10 February 2008.
3. Counseling statements show the applicant was counseled for the following offenses (misconduct) on:
* 27 October 2008, for a domestic verbal incident that escalated, the applicant choked his wife, and the military police were called
* 18 November 2008, for driving while his license was suspended
* 23 November 2008, for being late for work and disrespect towards a noncommissioned officer
* 2 June 2009, for being absent from work
4. On 9 March 2009, the applicant was evaluated for headaches at the Troop Medical Clinic, Fort Benning, GA and referred for follow-up for traumatic brain injury. The record indicates the applicant was taking Prozac.
5. On 1 June 2009, the company commander notified the applicant of contemplated separation with a general discharge under honorable conditions due to a pattern of misconduct.
6. The command referred the applicant for a mental health evaluation. On 24 June 2009, a clinical psychologist with a doctoral degree determined the applicant's behavior was normal. He was fully alert, oriented, and he displayed an unremarkable mood. His thinking was clear, thought content normal, and his memory was good. There was no significant mental illness. The applicant was mentally responsible, had the ability to participate in the separation proceedings, and he met retention standards. The doctor's diagnosis was the applicant had an adjustment disorder with anxiety and depressed mood. The evaluation indicated there was no indication of PTSD or TBI at that time.
7. The applicant acknowledged the notification and consulted with counsel who advised him of his rights. The applicant indicated that he understood he might encounter substantial prejudice in civilian life as a result of a less than fully honorable discharge and that he might be ineligible for some veterans' benefits under Federal and state laws.
8. On 7 July 2009, he submitted a statement requesting retention in the Army. In effect, he acknowledged that he understood his behavior had been unacceptable, he recognized the seriousness of his actions, and apologized. He also asked for another chance to demonstrate his worth and abilities to the command and to the Army.
9. The company commander recommended a general discharge, the chain of command concurred, and the separation authority directed the issuance of a general discharge.
10. Accordingly, on 24 July 2009, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct. He had completed 4 years, 9 months, and 18 days of creditable service.
11. On 10 September 2010, the ADRB denied the applicant's request to upgrade his discharge.
12. The VA awarded the applicant a 10 percent disability rating for grade 1 right acromioclavicular joint separation, a 10 percent rating for TBI with headaches and memory loss, and a 30 percent rating for PTSD, effective 25 July 2009. In July 2011, his rating for PTSD was increased to 100 percent disabling.
13. Title 38, U.S. 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.
14. Army Regulation 635-200 (Personnel Separations) 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 (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldiers overall record.
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.
c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant implies that he was not responsible for his actions because of mental/emotional problems.
2. The applicant's mental health evaluation indicated that he was responsible for his behavior and that there was no evidence of PTSD or TBI at that time. Additionally, he requested to be allowed to remain in the Army and admitted that he understood the seriousness of his actions.
3. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish any connection between his claim of mental/emotional problems and the misconduct that led to the discharge.
4. In view of the foregoing there is no basis for granting the applicant's requested relief.
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) AR20110019680
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110019680
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110017551
He provided an SF 507 (completed by the applicant and physician), dated 18 March 2008, which shows the applicant was diagnosed with PTSD/TBI. The VA Certificate, dated 10 August 2010, shows he received a service connected disability rating of 100%. The assessment recommended he follow up with his civilian physician regarding some physical abnormalities and while he required some activity limitations, there is no evidence the applicant provided the requested documentation or was found...
AF | PDBR | CY2009 | PD2009-00543
The IPEB considered the case, and found him unfit for continued military service due to Chronic Achilles Tendinosis. As noted above, the CI underwent MEB/PEB, and the Right Achilles Tendinosis (coded 5284) was rated at 10% disability. Based on that evaluation, the VA assigned a rating of 10% for Traumatic Brain Injury with Headaches (coded 8045-8100), 10% for Cognitive Disorder with Sleep Disorder (coded 8045-9304), and 10% for Tinnitus (coded 6260).
AF | PDBR | CY2009 | PD2009-00659
Headache Condition . The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating. Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
AF | PDBR | CY2009 | PD2009-00735
The CI was referred to the Physical Evaluation Board (PEB) and was found unfit for continued military service due to PTSD and TBI, rated 10% each. In this case the symptom complex includes decreased attention and concentration, mildly impaired memory, mildly impaired efficiency of processing, mild to moderate impairment of high level problem solving, mild sleep disturbance (insomnia), and headaches. These other conditions are all judged by the Board to be not unfitting at the time of...
AF | PDBR | CY2011 | PD2011-00847
In this case the letter allows separate ratings for 1) post-concussive syndrome with subjective dizziness and memory and concentration problems; 2) headaches due to TBI; and 3) anxiety and depression due to TBI; rendering each in effect as separately unfitting conditions for purposes of the combined disability rating. A 10% rating for code 8045 was effective the day after the CI separated from service. While it is likely the CI did have PTSD while he was in service, there is no direct...
AF | PDBR | CY2009 | PD2009-00587
The CI was referred to the Navy Physical Evaluation Board (PEB), determined unfit continued service, and separated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Naval and Department of Defense regulations. VA Training Letter, TL 07-05, Evaluating Residuals of Traumatic Brain Injury, dated 20070831 was in effect at the time the CI separated from service and therefore the Board will consider separate ratings for each symptom or condition...
ARMY | BCMR | CY2013 | 20130007391
The applicant provides and his record contains a DA Form 2173, dated 16 March 2005, wherein it shows he was treated as an outpatient at the military clinic in Iraq on 30 July 2004 for a right shoulder rotator cuff strain that occurred on or about 30 June 2004. The examining physician noted the applicant reported he continued to experience bilateral shoulder pain that increased with work activities. He stated he had been out of work and on disability since 2009.
AF | PDBR | CY2009 | PD2009-00420
The CI, found unfit only for the PTSD condition, was determined unfit for continued military service and separated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Navy and Department of Defense regulations. The CI completed his deployment and on return to the States had increasing symptoms of TBI including headaches, cognitive defects and a diagnosis of PTSD. Regarding TBI as a possible new unfitting condition: As noted in the...
ARMY | BCMR | CY2014 | 20140009613
He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical...
AF | PDBR | CY2011 | PD2011-00184
The PEB determined that post-concussive disorder was the primary unfitting condition and that PTSD, major depressive disorder, and cognitive disorder were category 2 conditions, conditions that are contributing to the unfitting condition (post-concussive syndrome), but not separately ratable. As noted above, the Board considered whether TBI or PTSD was the predominant unfitting condition and whether there was evidence the two diagnoses were separately unfitting and ratable conditions. ...