IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120010163 


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 discharge or correction of his records to show he was medically discharged instead of discharged for misconduct.

2.  The applicant states he had a medical condition that he was not properly treated for that caused his misconduct.

3.  The applicant provides:

* 2008 Department of Veterans Affairs (VA) rating decision
* Statement from his mother
* 1991 Chronological Records of Medical Care
* Internet printout related to:

* psychiatric disorders
* depression
* understanding the link between stress and depression
* alcoholism
* drug addiction and depression
* depression and substance abuse
* Vitamin B12 Deficiency
* Vitamin B12
* causes and symptoms of imbalance in the brain
* 
healthy eating and diet
* Alcohol's effects on B12 absorption
* substance abuse among the military, veterans, and their families
* active duty military care
* South Texas Healthcare System
* drug and alcohol abuse diagnosis and treatment
* substance abuse and mental health
* helping a depressed person
* dual diagnosis or co-occurring disorders
* dealing with depression symptoms and treatment

* 2001 Chronological Records Medical Care
* August and September 2001 Behavioral Health Assessment
* 2008 independent medical opinion
* 2010 psychological report
* 2001 separation recommendation memorandum
* Medical prescription for Vitamin B12 deficiency
* Internet printout related to co-occurring addictive and psychiatric disorders
* Internet printout related to drug addiction treatment
* 2012 letter from the South Texas VA office, San Antonio, TX

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 February 1987.  He held military occupational specialties 91B (Medical Specialist) and 91V (Respiratory Specialist).

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant (SGT)/E-5.

3.  On 19 January 2001, while holding the rank/grade of SGT/E-5, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  On 11 June 2001, he accepted NJP under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty on seven separate occasions.  He was reduced to the rank/grade of specialist (SPC)/E-4 and verbally reprimanded.

5.  On 15 June 2001, Military Police personnel at Fort Sam Houston, TX were notified of larceny of private funds by means of check/uttering a worthless check. An investigation revealed:

	a.  While conducting a routine traffic stop, county police apprehended the applicant for an outstanding warrant.  He was searched, apprehended, and transported to a county jail where he was further processed and placed on military hold.

	b.  He was later released to Military Police officials where he was processed and released to his unit after being charged with larceny of private funds off post.

6.  On 23 July 2001, Military Police personnel at Fort Sam Houston were notified of larceny/shoplifting at the Post Exchange (PX).  An investigation revealed:

	a.  The applicant, having been previously identified by PX security officials as a suspicious customer and placed on a list at Randolph Air Force Base (AFB) and Fort Sam Houston due to several previous returns, was monitored by closed circuit television (CCTV) upon entering the store.

	b.  He entered the store with an MP3 player that he wanted to return.  The PX customer service representative notified security officials who began to monitor him on CCTV.  He returned an MP3 player that matched one that was taken from the Randolph AFB Base Exchange (BX) by a person of the applicant's description.

	c.  He was video-taped placing in a cart a home theater speaker, one pair of woman's pants, two woman's pant suits, one woman's dress/blouse set, two speaker wire cables, and one CD/DVD player, and proceeding to the cash register where he was given a discount of 75% instead of the 25% allowed for each item on the first five items and not charged at all for the speaker wires and the CD/DVD player.  He paid $94.00 for all items on his STAR card instead of the actual total value of $626.12 with the correct discount.  He departed the store without rendering proper payment.

	d.  PX security officials detained him until Military Police arrived and apprehended him.  He was read his rights that he invoked requesting an attorney.  He was processed and released to his unit.

7.  On 23 August 2001, he accepted NJP under the provisions of Article 15, UCMJ for stealing various items of merchandise from the PX.  He was reduced to the rank/grade of private first class (PFC)/E-3.

8.  Additionally, on 23 August 2001, the applicant's immediate commander notified him that she was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for misconduct – commission of a serious offense.  The commander cited the following specific reasons and recommended a discharge under other than honorable conditions:

* Larceny
* Failing to  pay just debt
* Failing to go at the time prescribed to his appointed place of duty

9.  On 30 August 2001, the applicant acknowledged receipt of the separation notification memorandum and 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 of the procedures/rights available to him.  He elected consideration of his case by and personal appearance before an administrative separation board.  He elected not to submit a statement in his own behalf.  He also indicated he voluntarily waived consideration of his case by and appearance before an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions.

10.  The applicant further 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.

11.  On 31 August 2001, he underwent a mental status evaluation at the Department of Behavioral Medicine.  The clinical psychologist noted the applicant was alert, oriented, cooperative, and attentive.  His diagnosis was:

* Axis I:  Cocaine abuse and occupational problems
* Axis II:  No diagnosis
* Axis III:  None

The clinical psychologist noted there was no evidence of a mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels.  The applicant was mentally responsible for his behavior, able to distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a 

respondent in any administrative proceedings which might involve him.  He was psychiatrically cleared for any administrative separation deemed appropriate by the chain of command.

12.  Subsequent to this acknowledgement, the applicant's immediate commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12(c), for misconduct – commission of a serious offense.

13.  On 6 September 2001, the applicant's immediate and senior commanders recommended approval of the discharge with a general discharge.

14.  On 24 September 2001, the separation authority, the Commanding General, Brooke Army Medical Center, approved the separation action and ordered the applicant's discharge with a general discharge.

15.  On 11 October 2001, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation
635-200, paragraph 14-12(c) due to misconduct with a general discharge.  He completed 14 years, 8 months, and 8 days of creditable active service.

16.  His service medical records are not available for review with this case.  There is no indication in his available military record that shows:

* he was issued a permanent physical profile
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* he was referred to the Army Physical Disability Evaluation System (PDES)

17.  His record contains multiple DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) as follows:

	a.  Rating period July 1996 through June 1997, Korea, excellent rating for competence (duty proficiency and MOS), passed the Army Physical Fitness Test (APFT), met height/weight standards, and received an among the best and successful/superior ratings.

	b.  Rating period July 1997 through June 1998, Fort Sam Houston, success rating for competence, physical profile with an entry "profile does not interfere with job performance," met height/weight standards, and received a fully capable and successful/superior ratings.

	c.  Rating period July 1998 through June 1999, Fort Sam Houston, success rating for competence, passed the APFT, met height/weight standards, and received a fully capable and successful/superior rating.

	d.  Rating period July 1999 through April 2000, Fort Sam Houston, success rating for competence, physical profile with an entry "profile does not hinder performance of daily duties," met height/weight standards, and received a fully capable and successful/superior ratings.

	e.  Rating period May 2000 through April 2001, Fort Sam Houston, success rating for competence, physical profile with an entry "profile does not interfere with duty performance," met height/weight standards, and received a fully capable and successful/superior ratings.

18.  On 4 January 2011, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to an honorable discharge and change of his narrative reason for separation.  On 9 March 2011, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request was denied.

19.  He submitted:

	a.  VA rating decision, darted 10 December 2008, that shows the VA made a decision to increase his service-connected disability compensation for major depressive disorder at the rate of 30%, effective 28 September 2007.

	b.  A letter from his mother wherein she states her son has made several attempts to fix his disposition about life and resurrect his marriage.  He and his wife sought marital counseling at least twice.  When she visited them, it was evident that he was in a state of depression.

	c.  A chronological record of medical care, dated 25 October 1991, that shows the applicant self-referred to the Community Mental Health Service for stress management.  This form shows his mental status condition was "normal."  It also shows the behavioral science official noted the entries "return to duty, attend stress management, and referral to ADAPCP (Army Drug and Alcohol Prevention and Control Program)."

	d.  Multiple internet printouts from commercial and/or military websites related to symptoms, diagnosis, and treatments of stress, depression, substance abuse, vitamin deficiencies, and mental disorders.

	e.  VA rating decision, dated 20 November 2008, that shows he related to the VA a history of depression and that the VA took that into consideration in deciding the reason for the rating decision.

	f.  A Consultation Sheet, dated 24 October 1991, that shows during his interview at the Community Mental Health Service, "Soldier said that he desires to keep from getting himself in trouble.  He said that he is having marital problems, dislikes his work, drinks ‘a lot’ and desires 91V school."  The community health specialist noted the applicant had ineffective coping skills evidenced by depressed mood, related to marital discord and dissatisfaction with job.

	g.  An individual therapy report, dated 15 August 2001, that shows he presented himself as a self-referral for 90 minutes of individual therapy at the Community Behavioral Health Service.  He related he had tested positive for drugs during a unit urinalysis.  He stated that he was confused, stressed out, unhappy, and depressed.  He also related marital problems, sadness, and loss of interest, fatigue, and feeling of failure.  The diagnosis impression is listed as:

* Axis I:  Adjustment Disorder Mixed with Anxiety and Depressed Mood, Cocaine Abuse, Alcohol Abuse, Partner Relations Problem, and Occupational Problems
* Axis II:  No diagnosis
* Axis II:  Asthma, back and joint pain

	h.  Independent mental status evaluation, dated 3 November 2008, that shows he claimed depression.  The report shows he related ethanol abuse, occupational problems, and marital problems.  The medical doctor indicated it was his belief the applicant suffered from major depressive disorder, chronic, ongoing.  He had been treated appropriately with Wellbutrin and psychotherapy for this condition.  He was having difficulty in functioning at the time.  The medical doctor opined the applicant's ongoing anger and substance history experience while in the military was part of his depressive disorder.

	i.  Independent medical and/or mental status report, dated 11 February 2010, that shows he claimed major depressive disorder.  The report shows a diagnosis of major depressive disorder and substance abuse (alcohol).

	j.  Chronological record of medical care, dated 4 September 2001, that shows he related that anger and depression were events that increased his chances of taking drugs.  An official noted the entry "Soldier has a problem with alcohol or something" and "he had cocaine dependence and Alcohol dependence."

20.  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 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 (emphasis added).

	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.

21.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages - the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

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 at less than 30%.

23.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  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.

	a.  Paragraph 3-36 (adjustment disorder) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

	b.  Appendix, Section II, Terms, states physical disability is any manifest or latent impairment of function due to disease or injury, regardless of the degree of impairment that reduces or precludes an individual's actual or presumed ability to perform military duty.  The presence of physical disability does not necessarily require a finding of unfitness for duty.  The term "physical disability" includes mental diseases other than such inherent defects as behavior disorders, personality disorders, and primary mental deficiency.

24.  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.

25.  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

26.  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 serious offenses in the form of larceny, failing to pay just debts, and failing to go at the time prescribed to his appointed place of duty.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  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.

2.  With respect to upgrading his characterization of service:

	a.  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.  He was an NCO, charged with leading Soldiers.  Instead, he chose to steal merchandise from his local PX on more than one occasion.

	b.  His actions – theft – clearly brought discredit upon himself and the Army.  Additionally, his service was marred by other misconduct as evidenced by his previous NJP for failing to go at the time prescribed to his appointed place of duty on seven separate occasions.

	c.  Based on his overall record of indiscipline, his service was not consistent with and clearly did not meet Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to an honorable discharge.

3.  With respect to a medical discharge, there is no evidence of record that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, it is unclear what the applicant believes rendered him physically unfit.  The available medical records provided by the applicant do not appear to be complete.  However, the available records show he complained of stress, marital problems, drug/alcohol abuse, and depression.

	a.  He provides a chronological record of medical care that dates back to 1991 and shows he had marital problems and/or alcohol abuse issues.  Yet he executed several reenlistments over the years, he was promoted to SGT/E-5, and he received multiple evaluations that clearly show he was competent, successfully performed his MOS, passed the APFT, met height/height standards, and received an among the best and successful/superior ratings.  In instances where he was issued a physical profile, it was clear the profile did not hinder his duty performance.

	b.  He also provides various internet articles dealing with depression, alcoholism, drug abuse, vitamin deficiency, and/or a combination of these conditions.  He then highlighted or underlined selected words or phrases in each internet article in an effort to convince the reader that since what is mentioned in those articles applies to him.

	c.  He then provides a medical document dated in 2001 that shows he was self-referred for a therapy program for what appear to be depression, anger, and drug abuse.  Not only did he undergo a mental status evaluation prior to his discharge that cleared him for administrative separation, he fails to provide evidence that the issues he self-referred for rendered him physically unfit to perform the duties required of his grade and/or military specialty.

	d.  Further, the reason for his separation (misconduct - larceny) was not related to any medical conditions (stress and/or depression) he had been diagnosed with and there were no other compelling reasons for the separation authority to proceed with PDES processing.  In the absence of evidence to the contrary, it is presumed that the separation authority was aware of the requirements of Army Regulation 635-200 and acted accordingly.  But even if the separation authority 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 (theft) had no relation to the medical conditions (depression) he claims
* he presented no compelling evidence that other circumstances warranted disability processing over administrative separation

	e.  Finally, he provides his VA rating decision that shows the VA awarded him service-connected disability compensation for depression and therefore the Army should have, in effect, done the same.  There are two important concepts of clarification.

		(1)  One, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their 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) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

		(2)  Two, if and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.  In the applicant's case, there was no disabling condition to be identified, evaluated, or rated.

4.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120010163



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ABCMR Record of Proceedings (cont)                                         AR20120010163



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