IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120009433 


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 reversal of the decision by the Army Discharge Review Board (ADRB) to deny the upgrade of his general discharge to fully honorable and he now requests a medical discharge.

2.  The applicant states the ADRB decision states that his service medical records contain no diagnosis of post-traumatic stress disorder (PTSD); however, the medical records show he was given three medications for behavioral health conditions.  He asks why the medications were prescribed if he had no mental issues  The Department of Veterans Affairs (VA) still prescribes one medication for PTSD which is a clear indication of a behavioral health issue.  He was discharged for misconduct yet he was not reduced in rank.

3.  The applicant provides copies of the following documents:

* a listing of his medication profile
* ADRB denial decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* selected military medical records
* selected military dental records
* Post Deployment Health Assessment
* selected VA medical records and VA rating decision
* other military medical records, charts, reports, vaccine records, audiograms, emergency care, consults, screens, radiology results, and other medically-related documents, dated on various dates

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for 3 years and 21 weeks on 19 October 2005.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13D (Field Artillery Automated Tactical Data System Specialist).

2.  On 15 September 2006, the Fort Bliss Military Police (MP) were telephonically notified of an assault.  An investigation revealed the applicant was involved in a verbal altercation with another Soldier and struck him in the face knocking him unconscious.  He was apprehended and transported to the MP station where he was advised of his rights which he waived.  He rendered a statement admitting to the offense.  He was released to his unit for disciplinary or administrative action.

3.  He served in Kuwait/Iraq from 29 October 2006 to 10 December 2007.  He was promoted to specialist/E-4 on 1 August 2007.  He was assigned to Fort Bliss, TX

4.  On 13 January 2008, officers of the El Paso Police Department responded to an incident of family violence in progress.  An investigation revealed the applicant was involved in a verbal altercation with his spouse.  The spouse indicated the altercation turned physical when the applicant grabbed her and pushed her into the walls causing her nose to bleed.  He also pulled her by the shirt and choked her in an attempt to drag her from the residence.  He was transported to the El Paso County Detention Facility and charged with assault causing bodily injury and spousal abuse.  He was then released to the MP station which in turn released him to his unit.

5.  On 31 March 2008, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order.

6.  On 26 April 2008, an officer of the El Paso Police Department responded to an incident of family disturbance.  An investigation revealed the applicant was involved in a verbal altercation with his spouse.  The spouse indicated the altercation turned physical when the applicant retrieved an aluminum bat and pushed her in the stomach and tapped her on the head with the bat.  He also grabbed her by her arm and dragged her out of the apartment.  He further grabbed her by her throat and started to choke her.  The applicant refused to speak with the officers and when they attempted to apprehend him he became non-compliant and refused to let the officers handcuff him.  He was transported to the El Paso County Detention Facility and charged with aggravated assault with a deadly weapon, resisting arrest/search/transport, and spousal abuse.  He was then released to the MP station which in turn released him to his unit.

7.  His records contain several subsequent counseling statements by members of his chain of command for various infractions including:

* disobeying lawful orders on multiple occasions
* failing to report on multiple occasions
* no contact order
* overdue payment on his MILITARY STAR credit card
* willfully disrespecting a commissioned officer
* missing dental appointments
* assault consummated by battery
* failing to report to his transition appointment

8.  On 23 August 2008, he accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order.

9.  On 2 September 2008 in light of his repeated misconduct, the applicant underwent a mental status evaluation at the Fort Bliss Community Mental Health Clinic.  The evaluation noted the applicant:

* was fully alert, fully oriented, and had normal behavior
* had an unremarkable mood, clear thinking, normal thought content, and a good memory
* had the mental capacity to understand and participate in proceedings
* was mentally responsible

10.  The examining physician indicated the applicant had no mental disease or defect which would warrant disposition through medical or psychiatric channels.  He reported no suicidal or homicidal thoughts at that time.  He was cleared for any administrative action deemed appropriate by his chain of command.

11.  On 15 September 2008, he underwent a separation physical at Fort Bliss.  The military doctor found him medically qualified for separation.  No defects or medical restrictions were noted.

12.  On 20 October 2008, the applicant's immediate commander notified him that he was initiating action to separate him from the service under the provisions of paragraph 14-12(c) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct – commission of serious offenses.  

The commander cited the following specific reasons and recommended a general discharge under honorable conditions:

* willful disobedience of a lawful order (three times)
* failure to report (three times)
* assault (three times)

13.  On 20 October 2008, the applicant acknowledged receipt of the separation notification memorandum.  On 21 October 2008, he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights available to him.  He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

14.  Subsequent to this acknowledgement, the applicant's immediate commander initiated action to separate him from the service under the provisions of paragraph 14-12(c) of Army Regulation 635-200 for misconduct – commission of serious offenses.  The commander recommended a general discharge under honorable conditions.  His battalion commander recommended approval with the issuance of a general discharge under honorable conditions.

15.  On 23 October 2008 consistent with the chain of command's recommendations, the separation authority approved the separation action and ordered the applicant's discharge under honorable conditions.  On 14 November 2008, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12(c) due to misconduct (serious offense).  He completed 3 years and 26 days of creditable active service.

16.  On 9 June 2010, the ADRB found his discharge was proper and equitable.  It voted unanimously to deny his request for an upgrade of his discharge.

17.  On 19 February 2010, the VA awarded the applicant service-connected disability compensation at the rate of 50 percent for PTSD claimed as depression and anxiety disorder and 10 percent for bilateral tinnitus.


18.  He submitted the following documents in support of his application:

	a.  a medication profile listing all medications prescribed or issued between 10 July 2006 and 18 September 2008.  He circled citalopram (Celexa) and azithpomycin (Zithromax);

	b.  a VA Regional Office, Waco, TX, PTSD Stressor/AO Worksheet, dated (signed) 30 November 2009, showing the entry, "The veteran has not claimed PTSD or made any claim for a PTSD stressor.  The veteran has claimed TBI [traumatic brain injury] and anxiety and depression.  The veteran was diagnosed with PTSD by a VA [psychiatrist]."  He was involved in an improvised explosive device (IED) blast on 4 August 2007.  He was seen by medical personnel and placed in quarters for 2 weeks.  He experienced dizziness and constant headache at the time.  Various tests did not reveal evidence of irregularities which might denote the effects of acquired (traumatic) insult to the cerebral cortex; however, there were signs of serious psychological and emotional disturbance.  It was possible his headaches and sleep disturbances were associated with PTSD;

	c.  multiple chronological records of medical care, dated in July 2006, in relation to knee pain;

	d.  multiple chronological records of medical care, dated 4 August 2007, in relation to the IED blast.  In one document he came back to the clinic after 24 hours and indicated he was feeling fine with no headaches and he was ready to go back on missions.  He was released with no limitations; and

	e.  multiple post-deployment health assessments, immunization records, dental records, and other medical documents.

19.  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.

	a.  Paragraph 1-35 states that when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial convening authority (GCMCA) over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

	b.  Paragraph 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.

	a.  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 may reasonably 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.

	b.  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 physical evaluation board 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.

21.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties, may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), may compromise the health or well-being of other Soldiers, and/or may prejudice the best interests of the government if the individual were to remain in the military service.

22.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

23.  Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve.

24.  Section E3.P3.4 of DODI 1332.38 states that determining whether a member can reasonably perform his or her duties includes consideration of:

* common military tasks – duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or wear load-bearing equipment or protective gear
* physical fitness test – whether the member is medically prohibited from taking the respective service's required physical fitness test
* deployability – when a member's office, grade, rank, or rating requires deployability, whether a member's medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States
* special qualifications – for members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment, or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible

25.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed various serious offenses, including:

* three instances of willful disobedience of a lawful orders
* three instances of failure to report
* three instances of assault

2.  Accordingly, his chain of command initiated separation action against him for misconduct under the provisions of chapter 14 of Army Regulation 635-200.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The separation authority approved his discharge and he was ultimately issued a general discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.

3.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  With respect to a medical discharge, there is no evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, he underwent a separation physical as well as a mental status evaluation prior to his discharge.  The doctor/physician found him medically qualified and/or psychiatrically cleared for separation.  There is no diagnosis of PTSD throughout his military service.

5.  The available medical records were provided by the applicant.  They do not appear to be complete.  However, the available records show he had not claimed PTSD or made any claim for a PTSD stressor.  He claimed TBI and anxiety and depression.  He was provided medications and underwent treatment and/or therapy.

6.  Further, the reason for his separation (misconduct – commission of a serious offense) was not related to any medical conditions (PTSD) he had been diagnosed with and there were no other compelling reasons for the GCMCA to initiate PDES processing.  In fact, his first assault charge occurred on 15 September 2006 prior to his deployment to Kuwait/Iraq.  In the absence of evidence to the contrary, it is presumed that the GCMCA was aware of the requirements of Army Regulation 635-200 and acted accordingly.  If the GCMCA failed to make a determination regarding the applicant's PDES processing, this error would have been harmless because:

* the nature of the applicant's misconduct (disobeying orders, failure to report, and assault) had no relation to any medical condition he now claims
* he presented no compelling evidence that other circumstances warranted disability processing over administrative separation

7.  It is possible he believes since the VA awarded him a 50-percent disability compensation for PTSD, the Army should do the same.  It is possible he has developed PTSD since discharge or his condition existed at the time but was not severe enough to render him unable to perform the duties required of his grade and military specialty.  However, the Army's disability processing is dependent on the existence and severity of the condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by awarding, denying, or adjusting a disability rating.

8.  An award of a rating by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

9.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of discharge and should have been processed for separation due to physical disability.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20120009433



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ABCMR Record of Proceedings (cont)                                         AR20120009433



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