IN THE CASE OF:	   

		BOARD DATE:	   7 February 2013

		DOCKET NUMBER:  AR20120006473 


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 general discharge to an honorable discharge and a change of the reason for his discharge to "bipolar disorder and adjustment disorder."  He also requests a personal appearance before the Board.

2.  He states he wishes to have a simple mistake corrected.  His service was admirable and meritorious, and he has a record of achievement and a history of being a strong performer.  He encountered some environmental stimuli that caused disabilities while he was on active duty.  This is well documented in his record.  The characterization of his service as general, under honorable conditions, is a mistake.  He states the equitable solution is to change his characterization of service to honorable as it should have been consistent with all facts and laws.  As he informed the Army Discharge Review Board (ADRB) in a personal appearance, the Army was supposed to conduct a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) simultaneously with the discharge process, but mistakenly only pursued the discharge.  This contributed to bipolar disorder, which is rated by the Department of Veterans Affairs (VA) as disabling and connected to his service.

3.  He provides:

* briefs prepared by counsel and revised and signed by the applicant
* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Officer Record Brief
* ADRB Case Reports and Directives and associated documents
* DA Forms 1059 (Service School Academic Evaluation Report)
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* pages from Army Regulation 600-8-24 (Officer Transfers and Discharges)
* medical records
* orders
* DA Forms 4187 (Personnel Action)
* DA Form 638 (Recommendation for Award)
* DA Forms 4856 (Developmental Counseling Form)
* DD Form 1610 (Request and Authorization for TDY [Temporary Duty] Travel of [Department of Defense] Personnel)
* VA Form 10-10EZ (Application for Health Benefits)
* DA Form 3349 (Physical Profile)
* MEB Narrative Summary
* Report of Mental Status Evaluation
* description of Risperidone from MedlinePlus
* documents related to PEB/MEB processing
* Disciplinary Action Statement
* DA Form 3947 (MEB Proceedings)
* Correspondence to a Member of Congress from the Department of the Navy

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted and commissioned service in the U.S. Navy, on 9 April 2005, the applicant entered active duty in the U.S. Army as a Reserve commissioned officer in the rank/grade of second lieutenant/O-1 in the Military Intelligence (MI) Branch.  Effective 10 April 2005, he was promoted to first lieutenant/O-2.

2.  His record contains a DA Form 1059 showing he completed the MI Officer Basic Course on 13 September 2005.  The form shows in:

* item 13 (Performance Summary) he achieved course standards
* item 14 (Demonstrated Abilities) he received four "sat" ratings and one "superior" rating

3.  On 20 December 2006, he was discharged.  The DD Form 214 issued at that time shows in:

* item 13 (Decorations, Medals, badges, Citations and Campaign Ribbons Awarded or Authorized) – 
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Military Outstanding Volunteer Service Medal
* German Armed Forces Proficiency Badge (Bronze)

* item 24 (Character of Service) – "UNDER HONORABLE CONDITIONS (GENERAL)"
* item 25 (Separation Authority) – "AR 600-8-24, PARA 4-2B"
* item 28 (Narrative Reason for Separation) – "UNACCEPTABLE CONDUCT"

4.  On 28 February 2008, the ADRB informed him his request for a change in the character of and/or reason for his discharge was denied.  The ADRB Case Report and Directive shows:

	a.  On 19 July 2006, the Commander, U.S. Army Intelligence Center and Fort Huachuca, Fort Huachuca, AZ, notified the applicant of the initiation of elimination proceedings under the provisions of Army Regulation 600-8-24, chapter 4, for misconduct and/or moral or professional dereliction and other derogatory information.  A general, under honorable conditions discharge was recommended. 

	b.  The reasons for initiating the elimination action included:

* outstanding debts amounting to $160,000 (of which $105,000 was due to a gambling problem)
* fraternization leading to an inappropriate relationship with an initial-entry training (IET) Soldier who was married
* during a commander's inquiry, making false statements that he did not have sexual relations with the IET Soldier

	c.  The applicant was directed to show cause for his retention on active duty.  He was advised he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a board of inquiry.  

	d.  On 23 August 2006, he submitted a rebuttal.  On 8 October 2006, the aforementioned commander recommended his elimination from the service with an honorable discharge.

	e.  On 22 November 2006, the Acting Deputy Assistant Secretary (Army Review Boards) approved an Army Ad Hoc Review Board recommendation the applicant be discharged with a characterization of service of general, under honorable conditions.

	f.  The ADRB analyst did not find evidence to support the applicant's issue that he had been diagnosed with bipolar disorder, depression, or adjustment disorder.

	g.  The ADRB found his discharge was both proper and equitable and voted to deny relief.

5.  On 5 April 2010, the applicant appeared before the ADRB to request a change in the reason for his discharge and to upgrade the characterization of his service.  The ADRB again found his discharge was both proper and equitable and voted to deny relief.  On 8 April 2010, the ADRB notified him of the decision.

6.  His record is void of documentation pertaining to MEB or PEB processing.

7.  He provides several documents in support of his request:

	a.  A DA Form 4856 shows he was counseled by his company commander on 13 April 2006 for disrespect toward a superior officer, being absent without leave, and disobeying a direct order.  The form shows:

		(1)  On 12 April 2006, he demonstrated a severe lack of military courtesy and bearing when he raised his tone when addressing a senior commissioned officer, and he continued the insubordinate tone after being told to be at ease.

		(2)  On 13 April 2006, he failed to be at his correct place of duty (physical training (PT)) and failed to provide a valid reason for missing PT.  His commander noted this was not the first time he had missed PT formation.  He had been given a direct order to attend PT 5 days a week, which he had disobeyed.

		(3)  His commander informed him his actions were intolerable and not expected for an officer of his grade.

		(4)  He indicated he agreed with the counseling.   

	b.  Medical records show:

		(1)  On or about 20 March 2006, he experienced the onset of adjustment disorder with anxiety and depressed mood.

		(2)  On 10 July 2006, he was approved for 28 days of psychiatric hospitalization at a VA medical center in Cleveland, OH.

	c.  A DD Form 1610 shows he was authorized to travel from Fort Huachuca, AZ, to Cleveland, OH, for 34 days of TDY with a proceed date of 17 July 2006.  

	d.  A psychological evaluation completed at a VA medical center and faxed to the "US Army Evaluation Board" at Madigan Army Medical Center, Fort Lewis, WA, on 28 August 2006, shows he was admitted on 17 July 2006 and completed a series of psychological assessments on 20 July 2006.  He was diagnosed with:

* pathological gambling
* adjustment disorder with mixed depression and anxiety
* paranoid personality disorder

	e.  An MEB Narrative Summary, dated 22 August 2006, shows he was admitted to William Beaumont Army Medical Center, Fort Huachuca, AZ, on referral from the Community Mental Health Activity.  His chief complaint was entered as "I felt like smashing my company commander's head with a metal pipe."  The document shows he was prescribed Risperdal (risperidone), and the examining psychiatrist noted good benefit from the medication with regard to mood stabilization and reduction of hostility.  The examining psychiatrist found him unfit for further military duty.  He was diagnosed with:

* pathological gambling
* alcohol abuse-episodic
* hallucinogen-related disorder (anxiety and paranoid ideation)
* narcissistic personality disorder

	f.  A description of risperidone from MedlinePlus, a website maintained by the U.S. National Library of Medicine, shows the drug is used to treat symptoms of psychotic disorders such as schizophrenia.  

	g.  A Report of Mental Status Evaluation, dated 22 August 2006, shows he was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.  He was to be referred to the PEB for administrative adjudication.  

	h.  A Disciplinary Action Statement, dated 5 September 2006, shows his commander verified he was pending elimination from the service under provisions of the Uniform Code of Military Service with an indefinite date of 
separation.  In the phrase "Is not pending elimination," his commander clearly circled "is" and lined through "not."  The applicant indicates the document does not indicate he was pending elimination.  

	i.  A memorandum from his commander for the President, U.S. Army PEB, Fort Lewis, WA, subject:  Commander's Performance Statement – [Applicant], dated 5 September 2006, shows:

		(1)  His commander stated the applicant's medical issues began after he received punishment for a disciplinary issue that occurred in November 2005.  He had been recommended for separation from the service for disciplinary reasons.  Since a mental health evaluation in August 2006, he had continued in- and out-patient counseling for pathological gambling, substance abuse, and mental health.  

		(2)  His commander stated the applicant "now conducts himself as if the rules and regulation no longer apply to him and thinks he can do whatever he wants because he is already in trouble.  This attitude causes increased tension between him and the chain of command." 

		(3)  His commander stated he did not believe the applicant was capable of adequately performing his duties as an intelligence officer due to profile limitations so restrictive that they precluded him from performing duty in a tactical or combat environment.  His commander further stated, "I assess that [the applicant] is using the MEB to prevent him from discharge by his initial recommendation for separation.  I recommend [the applicant] not be referred to the Army's physical disability system and that he be separated under the provisions of AR 600-8-24."

	j.  A DA Form 3947, dated 19 September 2006, shows an MEB found he had the following medical conditions that failed to meet retention standards:

* alcohol abuse-episodic
* hallucinogen-related disorder
* narcissistic personality disorder
* pathological gambling

   k.  The form shows the MEB referred him to a PEB.  On 25 September 2006, the MEB findings and recommendation were approved.  On 27 September 2006, he indicated he agreed with the findings and recommendation.

8.  He provides a brief prepared by counsel that he revised and signed.  It states, in part:
	a.  His command did not process his discharge in accordance with Army Regulation 600-8-24, paragraphs 1-24 and 4-3a.  Therefore, he is entitled to an honorable discharge.  

	b.  At the end of 2005, he began to experience "extreme mental challenges due to some environmental variables."  He "developed a gambling problem and had a one (1) night fling with an enlisted soldier he was not aware of until the next day after drinking excessively at a local bar."  This led to a diagnosis of adjustment disorder and bipolar disorder.  

	c.  On 19 July 2006, his brigade commander initiated an elimination action against him under the provisions of Army Regulation 600-8-24, paragraph 4-2, because of his drinking and gambling.  On 22 August 2006, and MEB found him unfit for further military service and referred him to a PEB.  

	d.  On 23 August 2006, he responded to his commander's notification of the initiation of elimination action by informing her of his drinking problem and poor mental health and that the MEB/PEB process had been initiated.  On 8 October 2006, his commander forwarded the elimination packet to the Commander, Army Human Resources Command (HRC).  His commander recommended that he not be referred to a PEB, but instead receive an honorable discharge.  

	e.  On 23 October 2006, he received preseparation counseling for a medical separation.  The "counseling was very brief and definitely misleading since the command had no intention of following through with the medical separation" as required by regulation.  

	f.  On 24 October 2006, HRC forwarded his elimination packet to the Army Review Boards Agency.  In doing so, HRC indicated he had submitted his resignation in lieu of elimination.  He did not submit his resignation in lieu of elimination, only a rebuttal.  This error is severe and it is reasonably certain it influenced the decision makers.  He was granted an honorable discharge by Major General BF [then commander of the U.S. Army Intelligence Center, Fort Huachuca, AZ], and his discharge should be corrected immediately.

	g.  Army Regulation 600-8-24, paragraphs 1-24 and 4-3a, clearly states that when an MEB/PEB process and an elimination action for misconduct are occurring simultaneously, the MEB/PEB process will continue to completion.  The Secretary of the Army or his designee will choose which process takes precedence.  In his case, the PEB was never conducted.  Instead, he was eliminated for misconduct in violation of the governing regulation.

	h.  Since his discharge, he has been further diagnosed with delusional disorder as a result of the medication he was taking.  He has been hospitalized because his medication was causing significant damage.  Notwithstanding his struggles, prior to hospitalization, he continued to serve his country working for an organization to help transitioning veterans seek employment and seeking bids on multimedia projects within the Department of Defense.  

9.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.  

	a.  Paragraph 1-24 states when a commissioned or warrant officer, as applicable, is being processed for elimination under chapter 4 (Eliminations), the officer will be processed in accordance with the provisions of this regulation and through the MEB/PEB system.  If the result of the physical disability evaluation is a finding of physical fitness, the Army Physical Disability Agency will approve the findings for the Secretary of the Army and forward the proceedings to the Commander, HRC, to be processed with the other action.  If a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by the Commander HRC, to the Secretary of the Army or his designee for determination of appropriate disposition.

	b.  Paragraph 4-2b states an officer may be eliminated from the service for misconduct, moral or professional dereliction, or in the interests of national security.  Offenses warranting elimination include:  

* discreditable or intentional failure to meet personal financial obligations
* mismanagement of personal affairs that are unfavorably affecting an officer’s performance of duty
* mismanagement of personal affairs to the discredit of the Army
* intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation
* acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state)
* Intentional neglect of or failure to perform duties
* conduct unbecoming an officer

	c.  Paragraph 4-3 states an officer referred or recommended for elimination under chapter 4 who does not meet medical retention standards will be processed through both the provisions of this regulation and through the MEB/PEB process.  When it is determined the officer’s mental condition contributed to military inefficiency or unsuitability, the medical evaluation will include a psychiatric study of the officer.  This study will indicate whether the officer was able to distinguish right from wrong and whether the officer currently has the mental capacity to understand board and judicial proceedings and participate in defense.  When applicable, the report will also indicate whether the incapacitating mental illness could have been the cause of the conduct under investigation.

	d.  The final decision on recommendations for elimination is made by the Secretary of the Army or his designee.

	e.  The regulation states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active 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.  Title 38, U.S. Code, section 101(2), provides that individuals eligible for compensation include those discharged or released from active duty in the Armed Forces of the United States "under conditions other than dishonorable" who have completed prescribed periods of service. 

11.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested a personal appearance before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  The evidence of record does not support his request for an upgrade of his discharge and a change of the reason for his discharge.

3.  He states he has received a VA disability rating for bipolar disorder.  This is not evidence of error or injustice in the characterization of his service or the reason for his discharge.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition was incurred in or aggravated by active military service and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

4.  The applicant correctly notes that when the MEB/PEB process and an elimination action for misconduct are occurring simultaneously, the MEB/PEB process will continue to completion.  In cases where a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by the Commander, HRC, to the Secretary of the Army or his designee for determination of appropriate disposition.  

5.  The record shows the Acting Deputy Assistant Secretary (Army Review Boards), the Secretary of the Army's designee, approved the applicant's discharge under the provisions of Army Regulation 600-8-24, paragraph 4-2b, with a characterization of service of general, under honorable conditions.  In the absence of evidence showing otherwise, it must be presumed the Secretary of the Army's designee was aware of the applicant's diagnoses and that those diagnoses were considered prior to approving his discharge for unacceptable conduct.  

6.  The evidence of record supports the decision of the Acting Deputy Assistant Secretary (Army Review Boards).  The applicant had significant outstanding debts, he had engaged in fraternization that led to an inappropriate relationship with a married IET Soldier, and he made false statements that he did not have sexual relations with the IET Soldier.  The record further shows he was counseled for demonstrating a lack of military courtesy and bearing toward senior commissioned officer and disobeying a direct order.  Any one of these was cause to process him for elimination under the provisions of Army Regulation 600-8-24, paragraph 4-2b, and there is no evidence that his medical conditions prevented him from distinguishing right from wrong.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The record fully supports his general discharge for unacceptable conduct.

7.  In view of 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 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)                                         AR20120006473





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ABCMR Record of Proceedings (cont)                                         AR20120006473



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