BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110021423 


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 that his discharge under honorable conditions be voided and that he be discharged or retired by reason of physical disability.

2.  The applicant states he believes that he should have been medically discharged or retired by reason of physical disability.  He goes on to state that he was diagnosed with post-traumatic stress disorder (PTSD) on 21 April 2010 while still on active duty.  He served in the Army for 11 years and completed two tours in Iraq.  He continues by stating he has been granted service-connected disability (50%) by the Department of Veterans Affairs (VA) for PTSD and believes that he should have been processed for a disability separation instead of being discharged for misconduct.

3.  The applicant provides a letter explaining his application, copies of a chronological record of medical care showing his diagnosis of PTSD, a mental status evaluation, his VA Rating Decision, and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant initially served in the Regular Army from 3 January 1998 until he was honorably released from active duty in the pay grade of E-4 on 3 January 2001 due to the expiration of his term of service.


2.  He again enlisted in the Regular Army in the pay grade of E-4 on 30 May 2003, for a period of 3 years.  He reenlisted on 9 May 2006 in the pay grade of 
E-5 for a period of 3 years and a selective reenlistment bonus (SRB).  

3.  On 20 February 2007, he received a General Officer Memorandum of Reprimand (GOMOR) for driving while intoxicated (DWI).

4.  On 15 December 2007, he reenlisted in the pay grade of E-6 for a period of 6 years and an SRB.

5.  On 9 July 2009, the applicant’s commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation the offenses of communicating a threat to law enforcement officials, Army Substance Abuse Program rehabilitation failure, domestic violence issues, being drunk and disorderly, and assault consummated by battery.  The applicant declined the opportunity to submit matters in his own behalf and the bar to reenlistment was approved on 28 July 2009.

6.  On 13 August 2009, nonjudicial punishment (NJP) was imposed against the applicant for disorderly conduct.  

7.  On 19 April 2010, the applicant received a second GOMOR for DWI on 27 March 2010.

8.  On 21 April 2010, a licensed clinical social worker opined that the applicant exhibited symptoms of PTSD and he was not psychologically cleared for administrative separation.

9.  On 10 June 2010, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12 for commission of a serious offense.  He cited as the basis for his recommendation the applicant was apprehended for DWI, disorderly conduct, and communicating a threat towards law enforcement officials.

10.  On 15 June 2010, after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

11.  On 21 June 2010, the office of the Staff Judge Advocate conducted a legal review of the applicant’s case and opined that the applicant could not be administratively discharged until he was medically cleared by mental health officials for administrative separation.
12.  On 15 November 2010, the Chief, Outpatient Mental Health Services psychiatrically cleared the applicant for administrative separation.

13.  On 18 November 2010, the appropriate authority approved the recommendation for discharge and directed that he be discharged under honorable conditions.

14.  On 8 January 2011, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12B, for pattern of misconduct.  He had served 10 years, 7 months and 9 days of active service.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

17.  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 whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s records contain no evidence that he was deemed physically unfit to perform the duties of his office, rank, grade or rating while on active duty or that he should have been processed for separation through the Physical Disability Evaluation System.    

4.  Although the applicant was diagnosed as having PTSD, he was cleared by mental health personnel for administrative discharge and there appears to be no evidence to show that the clearance was in error or unjust. 

5.  Accordingly, there appears to be no basis to grant the applicant’s request to void his discharge and grant him a discharge due to 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 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)                                         AR20110021423



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ABCMR Record of Proceedings (cont)                                         AR20110021423



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