IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120008617 


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, in effect, that his general discharge be voided and that he be honorably discharged by reason of permanent disability and that his debt be cancelled/remitted. 

2.  The applicant states that he had good service until he became messed up mentally and should have been discharged for medical reasons.  He also states that he disagrees with having to repay his bonus debt as he does not have any income other than unemployment.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) claim and medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 October 2007 for a period of 3 years and 19 weeks and training as an infantryman.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Hood, Texas.

2.  He deployed to Iraq on 14 June 2008.  On 26 March 2009, he reenlisted for a period of 5 years, a lump sum payment of a selective reenlistment bonus, and assignment to Fort Campbell, Kentucky.  He departed Iraq on 13 June 2009 and was transferred back to Fort Hood.

3.  He was transferred to Fort Campbell, Kentucky on 10 September 2009 and on 24 May 2010 he was referred to the Army Substance Abuse Program (ASAP) and was diagnosed as having an alcohol and cocaine disorder.  He was a no-show for two psychiatric appointments and he admitted to drinking and not attending self-help meetings.  He completed inpatient treatment for substance abuse and trauma-related issues from 4 August to 1 September 2010.

4.  On 16 March 2011, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct due to commission of a serious offense.  He cited as the basis for his recommendation that the applicant had been absent without leave (AWOL) from 30 December 2010 to 5 January 2011 and 20 January to 1 February 2011 and had multiple failures to go to his place of duty.

5.  On 17 March 2011, after consulting with the trial defense service, the applicant waived all of his rights and declined to consult with counsel.  He also elected not to submit a statement in his own behalf.

6.  The applicant underwent a mental status evaluation and was diagnosed as having AXIS I: Polysubstance Abuse, Polysubstance dependence, and Adjustment Disorder not otherwise specified.  He was deemed mentally responsible and to meet the retention standards of Army Regulation 40-501, chapter 3.

7.  The applicant also underwent a medical/physical examination and was deemed fit for retention or separation.

8.  The applicant also acknowledged that he had been informed that he was required to repay $5,206.67 of his reenlistment bonus.   

9.  On 23 March 2011, the appropriate authority approved the recommendation for discharge and directed that his service be characterized as general, under honorable conditions. 

10.  Accordingly, he was discharged under honorable conditions on 31 March 2011 under the provisions of Army Regulation 635-200, paragraph 14-12c(1), due to misconduct (AWOL).  He had served 3 years, 4 months, and 20 days of active service.

11.  The documents submitted by the applicant shows that he has filed a claim with the VA for Post-Traumatic Stress Disorder (PTSD), hearing loss, anxiety disorder, sleep disorder, traumatic brain injury, and drug addiction.
12.  There is no evidence in the available records to show that the applicant has applied to the Defense Finance and Accounting Service (DFAS) for remission or cancellation of his debt.  Therefore, in the absence of evidence to show that he has exhausted all of his administrative remedies, the issue of remission/cancellation of his debt will not be discussed further in these proceedings.

13.  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 include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

14.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that 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 a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when 
a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

16.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

17.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

18.  Army Regulation 40-400 (Medical Services – Patient Administration), paragraph 7-1, provides, in pertinent part, that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the Physical Disability Evaluation System (PDES).  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the military occupational specialty (MOS) medical retention board (MMRB).  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB liaison officer.  MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the member's medical status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate when considering the available facts of the case.

3.  In order to be eligible for an MEB or processing under the PDES, an individual must have at least one unfitting condition and there is no evidence to show that such was the case here.  He was deemed fit for retention and separation by competent medical authorities prior to his discharge.  Accordingly, he was properly discharged under the provisions of Army Regulation 635-200, chapter 14, due to misconduct, with no indication of any violations of his rights. 

4.  Therefore, since there is no evidence of error or injustice in his case, there appears to be no basis to grant his request to change his discharge to a retirement by reason of permanent disability.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120008617





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ABCMR Record of Proceedings (cont)                                         AR20120008617



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