IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120004257 


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, through a court remand, that his discharge under other than honorable conditions be voided, that he be reinstated to the pay grade of E-6 and honorably discharged or that he be reinstated to active duty in the pay grade of E-6 and processed under the Physical Disability Evaluation System (PDES).

2.  The remand action, dated 23 February 2012, remanded the case to the ABCMR to address both the disability and improper discharge issues raised by the applicant.  The ABCMR was to address all issues within its authority, including but not limited to the issues below, and any other pertinent issues raised by the parties.  The ABCMR shall address, among other issues;   
   
* Whether a medical evaluation board (MEB) should have been conducted before the applicant was discharged from the Army
* The Army’s compliance with Army Regulation (AR) 635-200 (Active     Duty Enlisted Administrative Separations), paragraph 1-33 and              AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-9
* The implications and remedies of no MEB having been conducted
* The basis for the referral of the applicant to the “16 March 2011” interview with Dr. Mark R--se
* Whether and how Dr. R--se’s medical conclusions were documented in plaintiff’s personnel file and whether and how Dr. R--se’s medical conclusions were transmitted to other Army personnel
* The impact of Dr. R--se’s conclusion on the medical evaluation process
* What happened after Dr. R--se’s interview  
* What should have happened after Dr. R--se’s interview
* If requested, and as appropriate, a Board review of the applicant’s disability claims

3.  The applicant states his administrative separation board contained irregularities which were pointed out by his defense counsel at the time.  He further states that an MEB was recommended on 11 December 2009 but was never started.  The officer appointed to conduct the investigation under AR 15-6 (Procedures for Investigating Officers and Boards of Officers) did not gather the facts in regard to his ex-wife.  He was told by his former platoon sergeant to submit a travel voucher and he did not do it under his own free will.  He also states he received nonjudicial punishment (NJP) and paid the money back as well. 

4.  In a complaint filed on 2 May 2011 with the U.S. Court of Federal Claims, applicant alleged the following errors relative to him:  

   a.  It is essential that Soldiers who falter be given every opportunity to succeed (AR 635-200, subparagraph 1-16a)  
   
   b.  Disposition through medical channels takes precedence over administrative disposition processing (AR 635-200, subparagraph 1-33a) 
   
     c.  The Army violated its own regulations in that he had been found unqualified for military service in early 2010 and again in October 2010 by competent medical personnel.  As such, the Army violated its own regulations by ignoring prior medical evaluations in discharging him under an administrative proceeding that resulted in an under other than honorable conditions (UOTHC) discharge. 

     d.  Because of the arbitrary and capricious interference with the medical review process, he has been deprived of his liberty interests in that his good name and reputation are now tainted by a UOTHC discharge.

5.  The applicant provides a copy of his administrative separation packet and a copy of his Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) proceedings.  The record also contains the applicant’s medical records, behavioral health records, and an administrative record from the remand action.  The record also contains statements from a clinical psychologist at Womack Army Medical Center (WAMC) at Fort Bragg, North Carolina; the chief of patient affairs branch at WAMC; and a psychiatrist assigned temporarily at WAMC.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant’s request be approved.

2.  Counsel states, in effect, the applicant was denied due process during his administrative separation board process and he should have been processed under the PDES. 

3.  Counsel provides no additional documents other than those already noted. 

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Texas Army National Guard as a cannoneer from 15 August 1989 until he was honorably discharged on 14 August 1995. He enlisted in the Regular Army on 1 December 1997 for a period of 3 years.

2.  On 3 October 2002, he reenlisted in the pay grade of E-5 for a period of 4 years for retraining in MOS 11B (Infantryman).  He completed his training.  He was promoted to the pay grade of E-6 on 1 December 2003.

3.  On 28 November 2005, NJP was imposed against the applicant for the misuse of his government credit card.  His punishment consisted of a reduction to the pay grade of E-5, a forfeiture of $1,164.00 per month for 2 months (suspended for 6 months), restriction, and extra duty.  He did not appeal his punishment.

4.  The applicant reenlisted for a period of 4 years on 17 August 2006 for a selective reenlistment bonus (SRB) and was again promoted to the pay grade of E-6, on 1 October 2006.

5.  On 25 June 2007, NJP was imposed against the applicant for assaulting an Iraqi National by grabbing him by the throat, placing a pistol at his head, and striking him in the forehead with the pistol.  His punishment consisted of a reduction to the pay grade of E-5 (suspended for 6 months), a forfeiture of $1,545.00, and an oral admonishment.  He did not appeal his punishment.  

6.  On 17 June 2008, the applicant was assigned to the Warrior Transition Battalion (WTB) at Fort Bragg, NC.  Soldiers are assigned to the WTB to heal by following their prescribed care plan.  The applicant was provided with orientation counseling on 17 June 2008.  He was counseled that he must keep scheduled appointments or inform his case manager if an emergency arose and he could not keep appointments.  He agreed and did not provide comments.  He was informed that his primary mission was treatment and/or MEB processing.  The reverse side of the form is not contained in the administrative record.    

7.  The administrative record contains numerous DA Forms 4856 (Developmental Counseling Forms).  

* 1 October 2008, counseling for failure to report to squad leader; the applicant agreed and did not provide comments 
* 3 October 2008, counseling to inform the applicant of a conversation between the applicant’s wife and first sergeant; the applicant agreed and did not provide comments
* 20 October 2008, counseling for failure to report to formation; the applicant agreed and did not provide comments
* 2 December 2008, counseling for disobeying a direct order; the applicant disagreed and provided comments
* 30 December 2008, counseling for failure to report; the applicant did not check a block agreeing or disagreeing nor did he provide comments 
* 7 January 2009, counseling for failure to report to formation; no agreement or disagreement noted on form
* 9 January 2009, counseling for failure to make appointments; the applicant agreed and did not provide comments  

8.  On 6 February 2009, the applicant underwent a command-directed mental health evaluation.  Dr. K-----k, Clinical Psychologist, diagnosed the applicant with post-traumatic stress disorder (PTSD) but found no evidence that his condition would warrant disposition through medical channels per AR 40-501 (Standards of Medical Fitness) and no restrictions were necessary.  The applicant continued to receive mental health care from Dr. K-----k during his assignment to the WTB up until his separation.  This assessment is in the applicant’s electronic medical records.

9.  The administrative record contains the following DA Forms 4856.

* 17 August 2009, counseling for various issues relating to WTU; the applicant agreed and did not provide comments
* 17 August 2009, counseling for missing formation; the applicant agreed and did not provide comments
* 20 August 2009, counseling for failure to make appointments; the applicant agreed and did not provide comments
* 28 August 2009, counseling for various issues relating to WTU; the applicant agreed and did not provide comments
* 24 September 2009, counseling for various issues relating to WTU; the applicant agreed and did not provide comments
* 6 October 2009, counseling for missing appointments; the applicant agreed and did not provide comments 
* 28 October 2009, counseling for various issues relating to WTU; the applicant agreed and did not provide comments
* 28 October 2009, counseling for missed appointments; the applicant agreed and did not provide comments  

10.  In early 2009, the applicant was referred to an MMRB.  On 29 October 2009, he appeared before a final MMRB based on a permanent physical profile issued on 15 October 2008.  The applicant requested reclassification into another MOS and his commander supported the applicant’s request.  However, the MMRB recommended that he be evaluated by an MEB and regardless of the findings and recommendations of the MEB he would be referred to a Physical Evaluation Board (PEB).

11.  The administrative record contains the following DA Forms 4856.

* 4 November 2009, counseling for failure to report to formation; the applicant agreed and provided no comments 
* 24 November 2009, counseling for various issues relating to WTU; long-term goal was to rehabilitate and continue to serve country; the applicant agreed and did not provide comments

12.  On 28 December 2009, a memorandum was prepared by the Chief, Personnel Operations Branch, Subject, Record of MOS/Medical Retention Board (MMRB) Proceedings, [the applicant].  The memorandum directed that the applicant be scheduled for an MEB and PEB.  The memorandum directed the applicant’s commander to initiate immediate coordination with the Medical Treatment Facility (MTF) Physical Evaluation Board Liaison Officer (PEBLO) to obtain additional information and the scheduling of an MEB.

13.  On 7 January 2010, NJP was imposed against the applicant for filing a false claim against the government in the amount of $3,168.85.  His punishment consisted of a reduction to the pay grade of E-5, a forfeiture of $1,000 pay per month for 2 months (suspended for 6 months), and extra duty for 45 days. 

14.  The administrative record contains the following DA Forms 4856.

* 8 January 2010, counseling for failure to obey order or regulation and false official statement; the applicant agreed and did not provide comments
* 19 January 2010, counseling for failure to obey order or regulation; the applicant refused to sign the form
* 19 January 2010, counseling for missed formation; the applicant agreed and did not provide comments
* 20 January 2010, counseling for failure to obey a lawful order or regulation; the applicant agreed and did not provide comments   
* 22 January 2010, counseling to discuss utilization of the Command Group, Human “Recourse,” Training Technician and Supply Technician Areas; the applicant agreed and did not provide comments
* 25 January 2010, counseling to discuss duty performance, personal issues, promotions and upcoming events; the applicant agreed and did not provide comments
* 27 January 2010, counseling for numerous violations of the UCMJ; the applicant disagreed and provided a rebuttal  

15.  The pre-MEB process was begun in January 2010.  On 5 February 2010, the applicant was offered NJP for alleged violations of Article 91 and Article 86 of the Uniform Code of Military Justice (UCMJ).  

16.  A Suspension of Favorable Personnel Actions (FLAG) was placed in the applicant’s record on 5 February 2010.  The FLAG was an initial adverse action FLAG.  On 11 February 2010, the applicant refused Article 15 proceedings and demanded trial by court-martial. 

17.  The administrative record contains the following DA Forms 4856.

* 19 February 2010, counseling for not performing duties assigned to extra duty personnel; the applicant disagreed and provided comments 
* 3 March 2010, counseling for returning from leave after leave ended; the applicant agreed and did not provide comments 
* 3 March 2010, counseling to discuss duty performance, personal issues, promotions and upcoming events; the applicant agreed and did not provide comments
* 9 March 2010, counseling for failure to report and failure to obey an order or regulation; the applicant disagreed and provided comments
* 13 March 2010, counseling for numerous issues including making a false official statement and failure to obey regulations; the applicant disagreed and provided a rebuttal

18.  On 16 March 2010, the applicant was evaluated by Dr. R--se (a psychiatrist) in one 60-minute session who assessed the applicant as having post-traumatic stress disorder (PTSD) and depression, which did not meet retention standards.  Dr. R--se stated, “The SM’s subjective history would meet criteria for a Major Depressive Disorder…and PTSD.”  He noted the applicant had been diagnosed with PTSD in 2008 but did not refer to the fact the applicant had previously been found by Dr. K-----k to be Fit for Duty in 2009.  He did not explain why the applicant’s diagnoses of PTSD and depression failed to meet retention standards.  

19.  Dr. R--se also opined that the applicant was mentally responsible, able to distinguish right from wrong according to cultural norms, and had the capacity to participate in MEB proceedings.  Dr. R--se’s assessment is filed in the applicant’s medical records.  Dr. R--se was not the applicant’s attending physician and he did not provide the applicant with any psychological testing.  Dr. R--se did not evaluate the applicant again.  In a Declaration, Dr R--se stated that he entered his assessment into applicant’s electronic medical records for consideration by the  MTF commander.  The MTF commander would have authority to refer the applicant to an MEB.  Dr. R--se stated he did not have authority to refer Soldiers to an MEB.  

20.  A Memorandum for Record dated 30 March 2010 contained in the administrative record indicates the applicant’s commander notified the applicant of his intent to process him for administrative discharge.

21.  On 5 April 2010, Dr. B-------e, a licensed psychologist, noted that she told the applicant his problems appear to be legal, not mental health.  When asked why he did not return to duty after Dr. K----k found him fit for duty, the applicant responded that he wanted out of the Army via a medical board.  This notation is in applicant’s electronic medical records.  

22.  The administrative record contains the following DA Forms 4856.

* 26 March 2010, counseling for failure to report to PT formation; the applicant disagreed and did not provide comments 
* 6 April 2010, counseling for insubordinate conduct; the applicant disagreed and provided comments 
* 6 April 2010, counseling for failure to obey order or regulation and insubordinate conduct; the applicant disagreed and provided comments

23.  On 8 April 2010, the applicant underwent a mental health evaluation in accordance with AR 635-200 due to the pending administrative discharge action.  The examiner was Dr. G------m, Clinical Psychology Resident.  Dr. G------m stated the applicant did not meet retention standards as defined by AR 40-501.  This Report of Behavioral Health Evaluation was included in the administrative separation package.  This report indicated that Dr. G-----m’s determination that the applicant did not meet retention standards was based on the 16 March 2010 examination by Dr. R---se, the applicant’s statements, a clinical assessment, and 


information provided by the applicant’s commander.  A record of this assessment is also located in applicant’s electronic medical records.  In a Declaration, Dr.     G------m stated he assumed all Soldiers being administratively separated from the WTU were being considered for referral or had been referred to an MEB.  Based on the applicant’s statements and notes in applicant’s medical records Dr. G------m assumed the applicant had been referred and completed his report to reflect this assumption.  He stated he did not have authority to refer a Soldier to an MEB.  

24.  On 9 April 2010, an officer was appointed to conduct an informal investigation under the provisions of AR 15-6 into the circumstances surrounding the alleged misconduct of the applicant from June 2008 to April 2010.  The investigating officer found that the applicant had missed eight medical appointments in violation of the Warrior Transition Battalion Policy Letter #30  and that there were no documented reasons for his missing the appointments.  He also found that the applicant was in arrears for his child support, that a protective order was issued against the applicant to prevent further abuse of his ex-wife; and that field grade NJP was recommended twice for misconduct, once for temporary duty (TDY) fraud and once for failure to obey a lawful order, leaving his place of duty without authorization, and four specifications of failure to go to his place of duty.  

25. The investigating officer also found that the applicant had been reprimanded for 10 specifications of failure to obey orders or regulations, insubordinate conduct (two counts), failure to report (three counts), missed medical appointments, and numerous failures to meet his obligations while performing extra duties.  The investigating officer recommended that further disciplinary or adverse administrative action be taken against the applicant.  The investigation was completed on 21 April 2010.

26.  The administrative record contains the following DA Forms 4856. 

19 April 2010, counseling for disobeying a direct order on 17 and 18 April 2010; the applicant disagreed without providing remarks* 
* 17 May 2010, counseling regarding applicant’s termination from his work program job because he was performing the duties of the job improperly; cited actions were talking on his cell phone, giving wrong directions, evidencing an “I don’t care attitude”; the applicant agreed and did not provide comments  



27.  On 21 June 2010, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of AR  635-200, paragraph 14-12c, for commission of a serious offense.  He cited as  the basis for his recommendation that the applicant had been derelict in the performance of his duties on four separate occasions, for making eight false official statements, disobeying lawful orders from non-commissioned officers 10 times, disobeying a direct order from a commissioned officer 33 times, failure to go to his appointed place of duty on 20 occasions, assaulting someone with a deadly weapon, failure to pay his just debts eight different times, committing larceny of a value over $500.00, and filing a false and fraudulent claim against the United States.  He advised the applicant of his rights and also advised him that he was recommending that he be discharged UOTHC.  The notification memorandum indicated that a medical evaluation and mental health evaluation were attached.

28.  After consulting with defense counsel, the applicant elected to exercise his right to appear before an administrative separation board and he indicated that he would submit a statement in his own behalf within 7 days; however, there is no evidence that he did so.  The applicant did submit a request for a conditional waiver in which he agreed to waive his rights to appear before an administrative separation board in return for a guarantee of receiving a general discharge.  

29.  The applicant underwent an orthopedic surgical procedure on 29 September 2010 and received 4 weeks of convalescent leave.  He continued orthopedic and neurology appointments through December 2010.

30.  On 13 October 2010, the convening authority directed that the applicant appear before the Standing Warrior Transition Battalion board.  The applicant acknowledged that he would appear before the board scheduled for                  27 November 2010.  His defense counsel requested that the board be delayed until 6 December 2010.  The board was rescheduled to 10 December 2010.

31.  Meanwhile, on 9 December 2010, the convening authority (a lieutenant general) disapproved his request for a conditional waiver.

32.  The available records show that on 10 December 2010, the administrative separation board convened and after hearing testimony and reviewing the facts and circumstances, the board found that the applicant was not desirable for further retention in the service and recommended that he be discharged UOTHC. 

33.  On 22 December 2010, the applicant’s defense counsel submitted a memorandum to the convening authority contending that the applicant’s administrative separation board contained numerous administrative discrepancies.  He further contended that the applicant should be processed through medical channels because he did not meet medical fitness standards for retention and noted the applicant’s MEB proceedings had been stopped numerous times and had yet to be completed.

34.  On 4 February 2011, a legal review was conducted and the administrative law attorney reviewing the case determined that the findings of the administrative separation board were legally sufficient.  She also indicated no evidence was contained in the records to show that any MTF commander or attending medical officer determined the applicant did not meet medical standards for retention or that he had begun the MEB process.  She also indicated that if such evidence was presented to the separation authority, AR 635-200, paragraph 1-33 dictates that final action should not be taken pending the results of the MEB.

35.  On 4 February 2011, the applicant underwent psychological testing.  The applicant was diagnosed with “Dysthymic Disorder.”  Dr. B--------e met with the applicant and referred him back to Dr. K-----k for further treatment/counseling.  The medical records reflect that Dr. B-------e did not conclude that the applicant had a condition that did not meet medical retention standards.  This assessment is in the applicant’s electronic medical records.  

36.  On 11 February 2011, after reviewing the entire case file and all matters submitted regarding the applicant, the convening authority approved the findings and recommendations of the administrative separation board and directed that the applicant be discharged UOTHC.

37.  Accordingly, he was discharged UOTHC on 25 February 2011 under the provisions of AR 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He had served 13 years, 2 months, and 25 days of active service.  

38.  The record contains a Declaration from Ms. T. B-----n, Chief, Patient Affairs Branch for WAMC.  She supervises all administrative aspects of the physical disability processing of all disability cases at WAMC.  Ms. T. B-----n searched the MEBITT database, which indicated that the applicant did not undergo an MEB at WAMC.  Ms. T. B-----n indicated that after receiving the assessments of all pertinent specialists, the MTF commander conducts a medical examination of the Soldier.  If it appears the Soldier is not medically qualified, the MTF commander will refer the Soldier to an MEB.  Ms. T. B-----n did not state that an “attending medical officer” had the authority to refer Soldiers to an MEB at the WAMC. 

39.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation discusses reasons for separation including expiration of service obligation, convenience of the government, retirement and numerous other reasons.  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, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.  

40.  AR 635-200, Section VI (Medical Processing), paragraph 1-33 (Disposition through medical channels) states in paragraph 1-33a that except for separation action under chapter 10 and as is provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.

41.  AR 635-200, paragraph 1-33b, provides that when the MTF commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 7 or 14 does not meet the medical fitness standards for retention (AR 40-501, chapter 3), he or she will refer the Soldier to an MEB in accordance with AR 40-400.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.  If the MEB findings indicate that referral to a PEB is warranted for disability processing under AR 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court Martial Convening Authority (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 one of the following has been determined:   

* Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation
* Other circumstances of the individual case warrant disability processing instead of further processing for administrative processing

42.  AR 635-200 states the authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative provisions will not be delegated.

43.  AR 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

44.  AR 635-40, Section I (Eligibility for Disability Evaluation), paragraph 4-1, states a Soldier cannot be referred for, or continue disability processing when the Soldier is charged with an offense under the UCMJ which could result in a punitive discharge.  Paragraph  4-3 states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes  a characterization of service of UOTHC.  It further states the GCMCA may abate the administrative separation if the Soldier’s medical condition is the cause or substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions.  The GCMCA must sign the decision and forward it with a copy of the disability case file to the PEB.  The authority cannot be delegated.  Section III (Medical Processing Related to Disability Evaluation) at paragraph 4-9 states the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

45.  AR 40-400 (Medical Services – Patient Administration) states in paragraph 7-5 that in cases involving separation under the provisions of AR 635-200 when it appears that a mental illness, medical condition, or physical defect is the direct cause of unfitness or unsuitability, that individuals will be processed under the PDES.  Referral into the PDES takes precedence over enlisted administrative separations except where the regulatory provisions authorize a discharge characterized as UOTHC.

46.  AR 40-66 (Medical Record Administration and Healthcare Documentation) sets policies and procedures for the preparation, disposition and use of Army electronic and paper medical records and other healthcare documentation.  Service treatment records with behavioral health documentation will be recorded in the DOD’s electronic health record system.

47.  AR 40-66 (Medical Record Administration and Healthcare Documentation), dated 17 June 2008, sets policies and procedures for the preparation, disposition, and use of Army electronic paper medical records and other healthcare documentation.  Paragraph 1-4 states MTF commanders are the official custodians of the medical records at their facilities.  Medical records may be used by DoD employees who have an official need for access in the performance of their duties.     

48.  AR 40-501 states for both mood disorders (depression/depressive disorder is listed as a mood disorder by the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV) and anxiety disorders (the DSM-IV lists PTSD as an anxiety disorder), the causes for referral to an MEB are as follows:

   a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or

   b. Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or
   
   c. Persistence or recurrence of symptoms resulting in interference with effective military performance.

DISCUSSION AND CONCLUSIONS:

1.  The available records indicate the applicant’s administrative separation board was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  AR 635-200 at paragraph 1-33b provides that when the “MTF commander” or “attending medical officer” determines that when a Soldier is being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention, he or she will refer the Soldier to an MEB.  This portion of AR 635-200 limits the authority to determine whether a Soldier does not meet medical retention standards to the MTF commander or an “attending medical officer.”  

2.  The totality of the evidence, including the medical record most proximate to the applicant’s discharge, overwhelmingly supports the conclusion that the applicant, upon his separation, met medical retention standards and did not have a condition warranting an MEB or entry into the PDES.

3.  It appears the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4.  The applicant underwent the mandatory separation medical examination and mental status evaluations required by AR 635-200.  The mental status evaluation was documented in the applicant’s medical records as required by AR 635-200, paragraph 1-32b.  Although Dr. G------m stated the applicant did not meet retention standards as defined by AR 40-501, his report also indicated that his determination was based on the 16 March 2010 examination by Dr. R---se, the applicant’s statements, a clinical assessment, and information provided by the applicant’s commander.  In a Declaration, Dr. G------m stated he assumed all Soldiers being administratively separated from the WTU were being considered for referral or had been referred to an MEB, and based on the applicant’s statements and notes in applicant’s medical records Dr. G------m assumed the applicant had been referred and completed his report to reflect this assumption.

5.  The record does not contain evidence that the MTF commander referred the applicant for an MEB.  Dr. R—se stated the MTF commander had access to medical assessments in the electronic medical records.  Neither Dr. K-----k’s January 2011 entry nor Dr. B--------e’s February 2011 entries in the applicant’s medical records indicated that the applicant had a medical condition that did not meet retention standards.  Dr. K-----k had treated applicant over an extended period of time.  The evidence of record indicates Dr. K-----k would be considered the “attending medical officer” in this case.

6.  The applicant was referred to an MEB by the MMRB pursuant to AR 600-60 just prior to his January 2010 Article 15 and February 2010 demand for trial by court-martial.  The Physical Performance Evaluation System (PPES) is not part of the PDES but is a feeder into it.  Soldiers issued a permanent profile of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MMRB.  Soldiers who have conditions which do not meet retention standards should be referred directly to the PDES system.  The PPES should not be used as a means of gaining entry into the PDES in conjunction with separation or retirement for nondisability reasons.

7.  On 11 February 2011, after reviewing the entire case file and all matters submitted regarding the applicant, the GCMCA approved the findings and recommendations of the administrative separation board and directed that the applicant be discharged UOTHC.  Therefore, absent evidence to the contrary, it must be presumed that the GCMCA evaluated the applicant’s contentions and determined that PDES processing was not appropriate as he did not abate the separation process.  

8.  It also appears that, based on the applicant’s contentions, he wants the Board to accept that he had the right to commit multiple acts of misconduct without consequences simply because he was undergoing medical processing.  However, all Soldiers are held accountable for their misconduct and are afforded the opportunity to submit mitigating circumstances at the time they are held accountable.  In the applicant’s case, there is insufficient evidence to show that his medical condition was the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation or that other circumstances warranted disability processing.
9.  A review of his medical records shows that his one session with Dr. R—se, a psychiatrist, is present in the applicant’s mental health records.  This record would not have been filed in his personnel record.  However, it was considered in subsequent medical evaluations.  It does not provide evidence to show that his condition was the direct or substantial contributing cause of the conduct in question.

10.  The applicant was referred to Dr. R---se as part of the “pre-MEB” process or pursuant to normal medical treatment.  Dr. R—se’s medical conclusions were entered into applicant’s medical records.  Authorized medical personnel, including the MTF commander, had access to Dr. R—se’s conclusions.  

11.  Accordingly, it appears that based on the available evidence and the circumstances of his case, he was properly discharged in accordance with the regulations in effect at the time.

12.  In response to the specific issues remanded by the Court:

* Whether an MEB should have been conducted before he was discharged from the Army

Response:  There is insufficient evidence to show the applicant failed to meet medical fitness standards for retention.  Furthermore, the record does not contain sufficient evidence to support the conclusion that he had a medical condition that was the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.   

* The Army’s compliance with AR 635-200, paragraph 1-33 and AR 635-40, paragraph 4-9

Response:  The Army complied with AR 635-200, paragraph 1-33.  The precedence for medical processing provided for in paragraph 1-33a is subject to the limitations in paragraph 1-33b.  The applicant was processed for separation under chapter 14, AR 635-200; therefore, the MTF commander could refer the applicant to an MEB if he or she determined he did not meet the medical fitness standards for retention.  The record does not contain evidence that the MTF commander concluded that the applicant did not meet the medical fitness standards for retention.  Further, there is insufficient evidence now to show the applicant had any medical condition that warranted referral into the PDES.  As such, no referral to an MEB was required.  

Paragraph 4-9 appears in Section II (Medical Processing Related to Disability Evaluation).  This regulatory section provides for numerous methods of initiation of medical evaluations.  The applicant was provided with a separation physical and mental status evaluation.  The MTF commander had access to the applicant’s medical history and electronic medical records.  

* The implications and remedies of no MEB having been conducted

Response:  The Army complied with applicable regulations.  No remedies are required or indicated.  It appears the MTF commander discarded the opinion of Dr. R—se and determined that the applicant’s entire record and history showed he did not fail to meet retention standards and did not need an MEB.

* The basis for the referral of the applicant to the “16 March 2011” interview with Dr. R--se

Response:  Dr. R—se did not conduct an interview of the applicant on 16 March 2011.  He conducted a one-time interview of the applicant on 16 March 2010, almost a year before he was discharged.

The applicant was undergoing numerous medical evaluations.  He received regular mental health care from Dr. K-----k during his assignment to the WTB up until his separation.  At no time did Dr. K----k, the treating physician, determine the applicant was unfit for duty.  In fact, Dr. K-----k stated he was fit for duty.  Dr. R--se stated he performed evaluations for Soldiers being considered for referral to an MEB.  Ms. B-----n indicated it was the practice at WAMC to have Soldiers participate in “pre-MEB” processing.  During pre-MEB processing Soldiers meet with several specialty clinics and specialists who assess the Soldiers.  This process was accomplished to determine all possible medical conditions that may not meet retention standards.  The applicant’s assessment by Dr. R—se was part of this “pre-MEB” process.  

* Whether and how Dr. R--se’s medical conclusions were documented in the applicant personnel file and whether and how Dr. R---e’s medical conclusions were transmitted to other Army personnel

Response:  Dr. R—se’s medical conclusions were documented in the applicant’s electronic medical health records.  These records were available for review by individuals with access to these records.  Mental health evaluations are not normally placed in a Soldier’s personnel file.  

* The impact of Dr. R--se’s conclusion on the medical evaluation process

   Response:  According to Dr. R—se’s statement, his assessment was done for the benefit of the MTF commander.  Dr R—se’s evaluation was a one-time meeting with no testing.  Dr. R—se was not the applicant’s treating mental health provider.  Based on the limited and cursory nature of Dr. R—se’s assessment, it should have had very little impact on any medical evaluation process.  The applicant underwent numerous other mental health assessments subsequent to Dr. R—se’s assessment, none of which found he required an MEB.  Dr. R--se’s stating that the applicant’s subjective history would meet the criteria for a major depressive disorder and PTSD is similar to saying, “According to what the patient is telling me…”  Dr. R—se did not explain why the applicant’s diagnoses of PTSD and depression failed to meet retention standards.  His statement was such to imply that the mere existence of depression and PTSD and the fact that depression and PTSD are found in AR 40-501 rendered him unsuitable to perform his duties.  Those conditions are found in AR 40-501, but they are referable to an MEB only under certain circumstances (i.e., persistence or recurrence of symptoms are sufficient to require extended or recurrent hospitalization, or necessitate limitations of duty or duty in protected environment, or result in interference with effective military performance).  There is insufficient evidence to show that any of those circumstances were evident in the applicant’s case.

* What happened after Dr. R---e’s interview  

Response:  The applicant continued in the “pre-MEB” process and continued his assignment at the WTB.  

* What should have happened after Dr. R--se’s interview

Response:  According to Ms. B-----n, the MTF commander reviewed all the medical assessments.  Additionally, the individual requesting the assessment would have reviewed the assessment.  Since Dr. R--se did not explain why the applicant failed to meet retention standards (other than having a condition that was listed in AR 40-501), it appears the MTF commander properly decided there was insufficient evidence to warrant referring the applicant to an MEB.

* if requested, and as appropriate, a Board review of the applicant’s disability claims

Response:  The record does not disclose any conditions that failed to meet medical retention standards, as determined by the MTF commander.  The applicant was thoroughly evaluated during his 20 months in the WTB, and he was ultimately not determined to fall below retention standards.  The evidence supports the conclusion that he met medical retention standards.



13.  In response to the specific issues in the Complaint:

* It is essential that Soldiers who falter be given every opportunity to succeed.  (AR 635-200, subparagraph 1-16a)  

Response:  AR 635-200 at subparagraph 1-16 (Counseling and rehabilitative requirements) at subparagraph a states commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service.  

When the applicant was assigned to the WTB he was a Staff Sergeant (E-6) with over 10 years of service.  He was formally counseled on numerous occasions during a period of over one year prior to initiation of administrative separation action.  Furthermore, numerous counseling sessions were for repeat infractions.  

* Disposition through medical channels takes precedence over administrative disposition processing (AR 635-200 subparagraph 1-33a) 

Response:  This issue was discussed at length above.  

* The Army violated its own regulations in that the applicant had been found unqualified for military service in early 2010 and again in October 2010 by competent medical personnel.  As such, the Army violated its own regulations by ignoring prior medical evaluations in discharging the applicant under an administrative proceeding that resulted in a UOTHC discharge.     

Response:  The Army did not violate its own regulations.  A Soldier being processed for administrative separation under chapter 14 is referred to an MEB when the MTF commander determines the Soldier does not meet the medical fitness standards for retention.  The record does not contain evidence to find that the MTF commander determined the applicant had a medical condition that did not meet the medical fitness standards for retention.  

* Because of the arbitrary and capricious interference with the medical review process, the applicant has been deprived his liberty interests in that his good name and reputation are now tainted by a UOTHC discharge.

The record contains substantial evidence to support the actions of the Army in this case.  There is simply insufficient credible medical evidence to show the applicant failed to meet medical retention standards.



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.

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ABCMR Record of Proceedings (cont)                                         AR20120004257



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ABCMR Record of Proceedings (cont)                                         AR20120004257



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