IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110022050 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims.  The court directs the ABCMR to determine whether the applicant's post-traumatic stress disorder (PTSD) was a "direct or substantial contributing cause" of his misconduct requiring that his case be processed through medical channels.

2.  The applicant filed a complaint with the U.S. Court of Federal Claims wherein he alleges the decision to discharge him – and thus the decision to deny him pay – was arbitrary, capricious, and contrary to law in that it violated his due process.

* he served on active duty from 8 January 2000 through 6 January 2009 during which he twice deployed to Iraq
* upon his return from his second deployment, he began exhibiting symptoms of PTSD
* his commander referred him to a mental health evaluation for sleep problems and multiple instances of missing formation, but he was allowed to continue to serve
* he began having disciplinary problems including an altercation with his girlfriend and ultimate arrest for physical assault and disorderly conduct
* he was examined by physicians who assigned him a permanent physical profile that restricted his deployment, use of weapons, and other restrictions
* his condition deteriorated and he was no longer able to meet retention standards
* separation action was initiated against him and he elected an administrative separation board that recommended his discharge
* a concurrent medical evaluation board (MEB) found he did not meet retention standards
* the general court-martial convening authority (GCMCA) approved his administrative separation without issuing written findings or stating if the PTSD caused the acts of misconduct that resulted in his discharge
* he petitioned the ABCMR for the below corrections, but his petition was denied –

* voiding his 6 January 2009 discharge
* reinstatement to active duty
* entitlement to back pay and allowances
* processing through the Army Physical Disability Evaluation System (PDES)

3.  The applicant challenged the decision by the ABCMR and alleges this decision was arbitrary, capricious, contrary to law, or unsupported by substantial evidence.  In his application to the ABCMR, he identified seven legal errors or injustices as follows:

* whether the ABCMR considered his complete service record
* whether the lack of a complete record tainted the Board's characterization of his discharge
* whether his administrative separation was illegal punishment
* whether the separation violated his right to be given notice of the reason for separation processing
* whether the Army failed to consider his military defense counsel's appeal
* whether the Army failed to give him a required rehabilitative transfer
* whether the Army was required to process him through medical channels

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 24 August 2000 for a period of 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 96R (Ground Surveillance Systems Operator).  He also completed the Basic Airborne Course.

2.  His records show he served in Kuwait/Iraq from 30 March 2003 to 7 January 2004.  While in Iraq, he was honorably discharged for the purpose of immediate reenlistment.  He subsequently executed a 4-year reenlistment in the RA on 25 December 2003.  He also completed the Psychological Operations Specialist Course and he was awarded MOS 37F (Psychological Operations Specialist).  He was promoted to the rank/grade of sergeant/E-5 on 14 March 2005.

3.  He again served in Kuwait/Iraq from 9 November 2005 to 31 July 2006.  While in Iraq, he was again honorably discharged for the purpose of immediate reenlistment.  He subsequently executed a 4-year reenlistment in the RA on 1 April 2006.  He was assigned to the 3rd Psychological Operations Battalion, Fort Bragg, NC.

4.  During July 2006, he received an annual noncommissioned officer (NCO) evaluation report (NCOER) that covered the period 1 August 2005 through 31 July 2006 for his duties as a plans and programs team member while assigned to Company A, 9th Psychological Operations Battalion, Fort Bragg.

* his rater box-checked the "No" block for the "Loyalty" value
* he passed the Army Physical Fitness Test (APFT) and met the height and weight standards
* his rater rated his performance as successful in all areas except "Leadership" and commented on the applicant's insubordination
* his rater rated his overall potential as "Marginal"
* his senior rater rated his overall performance and overall potential as "Fair"

5.  On 8 May 2007, he underwent a mental status evaluation because of sleep problems and multiple episodes of missing formation.  The clinical psychologist indicated the applicant was fully alert and oriented and anxious, but with a clear thinking process and normal thought content.  He had the mental capacity to understand and participate in proceedings and he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  His diagnosis was that of PTSD.  The clinical psychologist indicated the applicant had a psychiatric condition which warranted disposition through medical channels.  He was psychiatrically cleared for any administrative actions deemed appropriate by his chain of command.

6.  During June 2007, he received a change-of-rater NCOER that covered the period 1 August 2006 through 30 June 2007 for his duties as a wind-supported air delivery system NCO while assigned to Headquarters and Service Company, 3rd Psychological Operations Battalion, Fort Bragg.

* his rater box-checked the "Yes" block for all values
* he passed the APFT and met the height and weight standards
* his rater rated his performance as successful in all areas and rated his overall potential as "Fully Capable"
* his senior rater rated his overall performance as "Successful" and overall potential as "Superior"

7.  On 26 November 2007, he was counseled by his company first sergeant regarding his failure to report, dereliction of duties, coercion of a junior enlisted Soldier for personal gain, and unauthorized travel away from Fort Bragg.

8.  On 13 December 2007, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, extra duty, and a suspended restriction.  He elected not to appeal his punishment.

9.  On 31 December 2007, he was arrested by civil authorities (Fayetteville, NC, Police Department) for assault.  He was suspected of grabbing Mrs. C____ W____ and dragging her down the hallway and throwing her into a chair and a railing.  He was released on a bond and ordered to appear in court on 21 February 2008.

10.  On 3 April 2008, he was arrested by civilian authorities for disorderly conduct and obstruction by resisting.  He was ordered to appear in court on 6 May 2008.

11.  On 4 April 2008, he departed his unit in an absent without leave (AWOL) status; however, he returned to military control on 7 April 2008.

12.  On 7 April 2008 in anticipation of administrative separation proceedings, he underwent a physical examination at Womack Army Medical Center, Fort Bragg. 
The examining physician noted his PTSD, depression, and left knee pain, but found him fully qualified for service.

13.  On 22 April 2008, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 5 to 7 April 2008.  His punishment consisted of a forfeiture of pay, extra duty, and a suspended restriction.  He elected not to appeal his punishment.

14.  On 13 June 2008, he was issued a permanent physical profile by the Behavioral Health Department of Womack Army Medical Center at Fort Bragg indicating he needed a medical evaluation board (MEB).  The profile indicated he was:

* unable to carry and fire his assigned weapon, move with a fighting load, or wear a protective mask and chemical equipment
* unable to construct an individual fighting position, unable to do 
3-to-5-second rushes under direct and indirect fire
* his medical condition prevented deployment
* he was being treated for a serious psychiatric condition and he was deferred from deployment
* he was taking sedating medications and required regular sleep, no overnight duty, he was limited to 8 hours of duty, and was not to report for duty until after 0900 hours
* he was not allowed access to weapons and he was not to use alcoholic beverages

15.  On 25 June 2008, he was counseled by his squad leader regarding incidents of missing formation and failing to follow orders.

16.  During June 2008, he received an annual NCOER that covered the period 1 July 2007 through 30 June 2008 for his duties as a company training NCO while assigned to Headquarters and Service Company, 3rd Psychological Operations Battalion, Fort Bragg.

* his rater box-checked the "No" blocks for the "Duty," "Honor," and "Integrity" values
* his rater indicated the applicant had a physical profile, but the profile did not hinder his duty performance
* his rater rated his performance as "Needs Improvement – Some" in all areas (Competence, Physical Fitness and Military Bearing, Leadership, and Responsibility and Accountability) except "Training"
* his rater rated his overall potential as "Marginal"
* his senior rater rated his overall performance as "Poor" and overall potential also as "Poor"

17.  On 18 July 2008, he was again counseled by his squad leader for failing to appear at his appointed place of duty.

18.  On 18 July 2008, the applicant's commander notified him of his intent to initiate action to discharge him from the service for his continuous pattern of misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b.  The immediate commander cited the basis for his recommendation that the applicant had assaulted a female civilian in July 2007 which resulted in a no-contact order being issued, that he harassed a female civilian in November 2007 which resulted in a no-contact order being issued, that NJP under the UCMJ was imposed against him in November 2007 for failing to go at the time prescribed to his place of duty, that he assaulted a female civilian in December 2007 and he was arrested by civil authorities, that he was arrested by civil authorities in GA in April 2008, and that he was AWOL from 4 to 7 April 2008 resulting in NJP being imposed against him.

19.  On 22 July 2008, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect, the possible effects of this discharge, and the procedures and rights available to him.  He elected consideration of his case by an administrative separation board and a personal appearance before the administrative separation board.

20.  On 16 and 18 August 2008, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge with the issuance of an under honorable conditions (general) character of service.

21.  On 6 October 2008, he was counseled by his squad leader regarding his failure to appear at his appointed place of duty.

22.  On 29 October 2008, an administrative separation board convened at Fort Bragg with the applicant and his counsel present.  During the course of testimony by the applicant's commander, the commander indicated the Alcohol and Substance Abuse Program (ASAP) counselor had notified him that the applicant was being disenrolled as a rehabilitative failure because he was unsuccessful in the program, that the applicant's attendance was sporadic, and that the applicant had continued to drink while in the program.  After hearing all testimony, including that of the applicant and his mother, the board found that the applicant did commit acts of misconduct, which included:

* being AWOL from 4 to 7 April 2008
* acting disorderly and resisting arrest on 3 April 2008
* assaulting a female on 31 December 2007
* failing to go at the time prescribed to his place of duty on 13 November 2007
* assaulting a female on 26 November 2007
* violating his profile by consuming alcohol

23.  The administrative separation board recommended his discharge with a general under honorable conditions character of service and explained the basis for its decision which included the possibility of retention and rehabilitative potential.

24.  Also on 29 October 2008, an MEB was convened at Womack Army Medical Center and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic PTSD and benign exertional headaches.  The MEB recommended his referral to a physical evaluation board (PEB).  The MEB's findings and recommendations were approved on 4 November 2008 and the applicant concurred with the recommendations and findings on 14 November 2008.

25.  The applicant's Narrative Summary (NARSUM) indicates the applicant had his first contact with Behavioral Mental Health in August 2006 and was diagnosed with PTSD.  He was started on medication in November 2006.  He was consistently followed for his symptoms by a psychiatrist for medication management and a psychologist for individual therapy.  He had a command-directed evaluation on 8 May 2007 because he was missing formation, presumably because of the side effects of his medication.  He was again diagnosed with PTSD and alcohol abuse.  It was recommended that he self-refer to ASAP and participate in a full course of anger management and a PTSD group.  The MEB physician indicated the applicant did not meet retention criteria in accordance with Army Regulation 40-501 and he should be referred to a PEB.

26.  On 6 November 2008 in a memorandum to the GCMCA, the applicant's defense counsel requested that the applicant be retained for processing through the PDES.  Defense counsel went on to explain that the applicant's misconduct occurred after two deployments and, as such, was the direct result of his diagnosed PTSD.  Therefore, he should be processed through the PDES instead of being administratively discharged.

27.  On 17 November 2008 in a memorandum to the commander, the PEB liaison officer (PEBLO) explained that since a chapter action was pending which may result in a discharge under other than honorable conditions, the case should be referred to the GCMCA for a determination as to whether the applicant should be administratively separated or referred through the PDES.  The memorandum explained that if the Soldier was to be referred through the PDES in lieu of administrative separation, the case was to be returned to the PEBLO with a copy of the GCMCA's decision, and if the applicant was to be administratively separated, a copy of the GCMCA's decision was to be forwarded to the PEBLO.

28.  On 11 December 2008, the GCMCA approved the findings and recommendations of the administrative separation board and ordered the applicant to be discharged and furnished a general discharge under honorable conditions.  Among the information presented to the GCMCA along with the MEB was the summary of proceedings from the administrative separation board.  Excerpts from the summary included:

	a.  Memorandum from the PEBLO, dated 17 November 2008, forwarding the MEB and asking to be informed of the GCMCA's determination whether applicant should be administratively separated or referred through the PDES (000030).  Memorandum specifically refers to Army Regulation 635-200, paragraph 1-35b [should refer to paragraph 1-33b which explains exactly what the GCMCA needs to do and also to Army Regulation 635-40, paragraph 4-3, which states the same thing regarding the GCMCA's non-delegable determination].

	b.  K____ Testimony (Tybee Island Assault of 8 April 2008) (000036 & 000037):  "I was called to the Windrose Bar…  I…identified myself as a police officer…  I tried speaking with [applicant], to find out what was going on.  He became disorderly and began swearing at me.  He was not listening to anything I was saying.  He then came at me in an aggressive manner…  We started wrestling…  We went up against a wall and then down to the floor; that's when I called for backup…  We took him outside and put him in the back of my patrol car…  Probably a mile down the road, I started to hear a banging.  He was kicking at the back divider of my patrol car…  His foot opened up the slider on the Plexiglas.  He was trying to kick me in the head as I was driving…  I radioed to my lieutenant and informed him 'I needed help with this guy'…  It took all three of us to get him into the van…  I have been a police officer on Tybee Island for almost a year and a half.  In that time, I have responded to other cases of an individual being drunk and disorderly at a bar.  On a scale of 1 to 10, 1 being the least severe, and 10 being the most, I would say this incident was an 8…  I could tell [applicant] was intoxicated.  Based on my experience, I could tell he was extremely intoxicated."

	c.  First Sergeant D____ Testimony (in person) (000041 & 00042):  "I am aware the MEB is in its final stages.  I was aware he was diagnosed with PTSD, but was not aware that it was severe PTSD.  A lot of this ties back to one thing.  He has been under treatment, evaluation, and he has been taking medication.  The big thing is he was told by the doctors, the commander, and me to refrain from drinking while on his medication…  Most of the issues [applicant] have been counseled on have been alcohol related…  I kept telling him not to drink while he was on his medication.  I realized after a year and a half of trying to work with [applicant], he does not want to cooperate…  The drinking thing was the concern; that was the big one.  Other than drinking, the only problem was just getting him to show up for formation."

	d.  First Sergeant D____ Testimony (telephonically) (000051 & 000052): "The issue with [applicant] is his pattern of misconduct when he starts drinking.  I have told him several times to not drink and he will not get in trouble."

	e.  Captain W____ Testimony (000044 through 48):  "There are required substance abuse program meetings that [applicant] has missed.  I was informed yesterday by [applicant's] counselor that she was recommending his disenrollment from the program.  He was unsuccessful in the program and there was nothing else she could do to help his progress…  She gave me a sheet of all the meetings he had missed and how many he had shown up to…  I have been told that [applicant] has continued to drink since he has been enrolled in the ASAP…  I know he has conditions and I have talked to his doctor…  The medicine is why [applicant] has a 0900 work call.  The doctor stated that if the medication is taken properly, he should be able to show up on time and perform his duties.  The doctor said the medication will make you drowsy, so he recommends taking it early in the evening; not at 11:00 or 12:00 at night….  The doctor informed me that he told [applicant] many times that he cannot drink while taking the medication…  I was not surprised when I talked to [applicant's] counselor at the ASAP of the results I heard.  He was not getting better or cooperating.  It always seemed that when it came down to the last second, he would produce the work she was requiring.  To my understanding, when he found out about the chapter [action], that is when he had the MEB."

	f.  Staff Sergeant C____ Testimony (000043 & 000044):  "I do not counsel [applicant] every time he messes up.  I usually just sit him down and tell him as an NCO I expect better from him…  I heard he was being medically boarded for PTSD.  He was taking medications and that's why he was late sometimes…  When he is at work he helps out…  The first time I went to his house, it was because he was not answering his phone…  In the counseling statement, I said he had beer bottles lying around.  I do not know if they were his, he said they were friends'."

	g.  J____ M. H____ Testimony for Defense (000052 & 000053):  "I have experience going out with [applicant] and drinking alcohol.  Post-deployment, he has never told me he has needed to see a chaplain or get help. . . . We hung out this past weekend and had a few drinks…  I am not aware [applicant] is unable to drink due to medications."

	h.  Applicant's Testimony (000058 & 000059) regarding the 13 November 2007 failure to repair to night shift duty at the billets:  "I knew full well of the regulation that an NCO was supposed to be present for the shift.  I had a conflict with the unit, and being able to trust that even if I asked to go, I would not be able to go.  I knew it was wrong not to check in.  I was expecting to have consequences when I came back.  I would not expect my Soldiers to do anything I had done."  Regarding the Tybee Island Assault:  "I was in Georgia visiting a friend of mine and had been trying very hard to control my drinking.  I was in the Windrose and had a couple of drinks.  Someone in there found out I was in the Army and they bought me a couple of hard liquor drinks.  The next thing I remember, the military police were dropping me off at the gate at Hunter Air Force Base.  I did not know what had happened."  Regarding the 31 December 2007 assault on a female:  "C____ W____ and I were just friends.  We were not dating.  She was hanging out at my house the one night while I had people over.  At the time I had a pool table and a big screen television and I liked having people over and enjoy them.  While everyone was there, I left and went to the Class Six store to purchase more alcohol.  When I returned, I noticed that Ms. W____ was making out with one of the guys there…  I did not care because we were not seeing each other. . . . I moved past them and went to make myself a drink.  The guy followed me into the kitchen, took my drink from me, and drank it.  I walked away…  He followed me out and I immediately subdued him on the ground…  Ms. W____ attempted to get me to calm down and I pushed her off me."

	i.  Sworn Statement of A____ C. S____ (000068):  "[Applicant] and I were in a relationship beginning in April of 2007.  In the beginning things went well, but as time progressed I noticed a disturbing increase in his drinking and temper.  I brought this to his attention and that is when he informed me of his PTSD and problems he was having with his medication.  [Applicant] would come home after work and begin drinking…  In July of 2007, one specific incident brought serious concern to me.  He had stayed the night at my house while my friend B___ was up for a visit.  [Applicant] decided to go to the bar which was just up the road.  He said he would be back once the bar closed.  By 4:00 a.m. we got really worried… 
I drove over to his apartment…to check and see if he had gone there.  He was passed out on his bed when I walked in…  I returned again at about 9 to check on him.  When I tried to wake him up he was still drunk.  I had leaned over the bed to shake him and he grabbed my wrist…  I managed to yank my arm away from him and he began yelling at me about random things.  I told him it was over and when he sobered up he could come by my house and pick up the rest of his things…  As I was leaving, [applicant] came storming after me and followed me back to my house even though he was still heavily intoxicated and was weaving all over the road…"

29.  A copy of the GCMCA's decision was furnished to the PEBLO.  The applicant was accordingly discharged on 6 January 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a general under honorable conditions character of service on 6 January 2009 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct.  He completed 8 years, 4 months, and 10 days of creditable active service.  This form also shows he was awarded the:

* Army Commendation Medal (2nd Award)
* Army Achievement Medal (3rd Award)
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Global War on Terrorism Expeditionary Medal
* Humanitarian Service Medal
* Iraq Campaign Medal
* NCO Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Parachutist Badge

30.  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, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-33 (Disposition Through Medical Channels) states that except in separation actions under chapter 10 and as provided in paragraph 
1-33b, 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, he/she 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 results of the MEB.  If the MEB's findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of 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 GCMCA and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the PDES when action under the UCMJ has not been initiated and the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination, or other circumstances of the individual case warrant disability processing instead of further processing for administrative processing.  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.

	b.  Paragraph 1-16 (Counseling and rehabilitative requirements) states that the rehabilitative transfer requirements in chapters 14 may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such a transfer will serve no useful purpose or produce a quality Soldier.  Such circumstances may include participation in ASAP and/or a mental health program or any other such programs.

	c.  Paragraph 14-17 (Action by Separation Authority) provides that the separation authority may direct that the case be processed through medical channels, if appropriate.  Such disposition is required if the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct and no action under the UCMJ is initiated.  A copy of the signed decision document by the GCMCA will be included with the records.

31.  Army Regulation 635-40 establishes the Army 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 or her office, grade, rank, or rating.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501.

32.  Army Regulation 635-40, paragraph 3-1, 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 or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

33.  Army Regulation 635-40, paragraph 4-3, 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.

34.  Neither Army Regulation 635-200, paragraph 1-33, nor Army Regulation 635-40, paragraph 4-3, further define the phrases "medical condition is the direct or substantial cause of the conduct" or "disability is the cause or a contributing  cause of the misconduct."

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a series of offenses in that he failed to show up for formation, was arrested by civil authorities, assaulted a female, and was reported AWOL.  In each instance he was counseled and a plan of action was recommended.

2.  Having failed to respond to counseling, his chain of command initiated separation action against him for a pattern of misconduct under the provisions of Army Regular 635-200, chapter 14.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The governing regulation requires that when an administrative separation is being processed at the same time as a medical evaluation is being conducted, the GCMCA will make the final determination as to whether the Soldier will be administratively discharged or whether he/she will be processed through the PDES.

4.  In the applicant's case, the GCMCA was provided the results (findings and recommendations) of both the administrative separation board and the MEB before he made his decision to separate the applicant under the administrative separation board procedures instead of the PDES procedures.  While the applicant may not agree with the decision, it was the GCMCA's decision to make in this case and it appears that his administrative separation was accomplished in accordance with the applicable regulations with no violations of any of the applicant's rights.

5.  The fact that the GCMCA was provided with the MEB proceedings by the PEBLO with instructions for him to make an appropriate determination regarding the applicant's processing and the fact that the GCMCA furnished the PEBLO a copy of his decision to discharge the applicant under administrative board proceedings are in themselves reflective of the GCMCA's determination that PTSD was neither a direct nor substantial contributing cause of applicant's misconduct.  It supports the proposition that the GCMCA knew, understood, and executed his responsibilities in accordance with applicable regulations.  The applicant's PTSD diagnosis was not lost in a laundry list of medical conditions.  It was discussed at the administrative separation hearing and was one of only two conditions listed in his MEB, the other condition involving benign headaches.  Significant information, including applicant's own testimony before the separation board, pointed to the applicant's abuse of alcohol as the cause of his assaultive misconduct rather than PTSD, and simple willful disobedience as the cause of the applicant's misconduct involving a lack of accountability.   There is no regulatory requirement that the GCMCA memorialize a negative finding with respect to causation.

6.  In addition to this Board's finding that the GCMCA did, in fact, determine applicant's PTSD was not the direct or substantial contributing cause of his misconduct, the Board, using its power of de novo review, has also specifically determined the applicant's PTSD was not the direct or substantial contributing cause of his misconduct based on the evidence cited above and other information provided.  None of applicant's accountability offenses were other than willful decisions to absent himself from duty and none of applicant's assaultive misconduct occurred while on duty and all took place in conjunction with applicant's use of alcohol.  The applicant's diagnosis of PTSD did not cause him to ignore the advice of his physicians and command not to drink, fail to participate in rehabilitative efforts, or continue to drink despite the clear knowledge that his alcohol consumption would inevitably lead to poor judgment and illegal behavior.

7.  The applicant failed to show through the evidence submitted and the evidence of record that there is a correlation between his PTSD and the misconduct he committed.  The nature of his misconduct (missing formation, assault, civilian arrest) had no relation to any medical condition he now claims and he presented no compelling evidence that other circumstances warranted disability processing in lieu of administrative separation.

8.  His contention that he was denied due process because he was not rehabilitatively transferred is also noted.  Not only could the administrative separation board have recommended the applicant's rehabilitative transfer when it considered such as an option, the GCMCA could have disapproved the findings and recommendation for separation and directed the applicant's rehabilitative transfer.  However, it must be presumed that the GCMCA did not deem that to be an appropriate solution in the applicant's case.  In any event, it was the GCMCA's decision to make.

9.  The applicant's contention that the GCMCA's failure to consider the applicant's military defense counsel's "appeal" to delay the administrative separation board until the MEB results were obtained was improper is also noted. 
In this case, both were accomplished at the same time and the GCMCA did not act on either until such time as he had both of the board's findings and recommendations to consider.

10.  Further, contrary to applicant's current counsel's position, the military defense counsel's memorandum did not allege error.  It is a work of advocacy.  As such, it exaggerates the positive and ignores the negative.  As to causation, it essentially argues nothing more than the applicant should be retained because PTSD must have caused his misconduct because the PTSD diagnosis preceded applicant's acts of misconduct.  To the extent the memorandum has any value, its value is that it tends to show the parties involved, including the GCMCA and his legal advisors, knew the GCMCA was required to make a determination regarding whether applicant's medical condition was the direct or substantial contributing cause of applicant's misconduct.  Again, it was the GCMCA's decision to make and exercising his rights and command authority does not constitute an error or injustice.

11.  Based on the foregoing, there is no basis for granting the 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 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)                                         AR20110022050



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ABCMR Record of Proceedings (cont)                                         AR20110022050



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