BOARD DATE:	 11 July 2013 

		DOCKET NUMBER:  AR20120021878 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable and to change his narrative reason for separation; in effect, he requests correction of his records to show he was medically discharged.

2.  The applicant states:

	a.  His discharge was erroneous and unjust.

	b.  On 26 February 2003, he was diagnosed as being bipolar for a rash of missed formations and an isolated event.  He was given Wellbutrin (bupropion – used to treat major depressive disorder and seasonal affective disorder) and placed on quarters for 48 hours for medicine adjustment.

	c.  On or about 10 March 2003, his entire unit was deployed to Iraq to operate the morgue unit.  As a chemical operations specialist, his command made him process remains during the duration of the deployment due to the lack of personnel.  He processed over 100 remains for over 6 months.

	d.  The policy guidance for deployment-limiting psychiatric conditions and medications states that psychotic and bipolar disorders are considered disqualifying for deployment.

	e.  During his deployment and after his return, he experienced several nightmares and isolations.  He fears any and everything.

	f.  Once he was redeployed, he was not seen for his disorder nor was his medication adjusted.  His conduct began to get worse and a few months later, he was discharged.

	g.  He served two full terms and reenlisted for a third term on 25 April 2003 while he was deployed in Iraq.

	h.  During his discharge processing he was seen by mental health personnel who did not acknowledge his bipolar diagnosis.

	i.  He suffers from the events he witnessed in Iraq.  He has service-connected post-traumatic stress disorder and is seeking service connection for bipolar disorder.

3.  The applicant provides:

* automated Standard Form 600 (Chronological Record of Medical Care), dated 26 February 2003
* DD Form 214
* memorandum, Assistant Secretary of Defense for Health Affairs, dated 7 November 2006, subject:  Policy Guidance for Deployment-Limiting Psychiatric Conditions and Medications, with two pages of the policy guidance attachment

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the U.S. Army Reserve Delayed Enlistment Program on 29 June 1998.  On 24 June 1999, he was discharged from the U.S. Army Reserve for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 25 June 1999.  On 25 April 2003, he reenlisted for a 3-year period.

3.  Records show the applicant received numerous counselings for being absent without leave (AWOL), failing to obey a lawful order or regulation, and being late or missing formation or movement.

4.  The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on the following occasions:

* on 1 May 2002, for failing to go to his appointed place of duty
* on 19 December 2002, for missing a unit movement
* on 5 November 2003, for being AWOL, stealing a checkbook of another Soldier and forging that Soldier's name, and stealing funds from the U.S. Government

5.  An automated Standard Form 600, dated 26 February 2003, provided by the applicant shows he was seen for a physical profile evaluation and placement in quarters at the request of his first sergeant.  This form also shows:

* the applicant was sent according to him by his first sergeant to get quarters while starting his medication (Wellbutrin) – still hyperactive
* assessment/plan of care – bipolar –

* continue prescribed Wellbutrin
* quarters for 48 hours until 1 March 2003
* return to clinic as needed or follow up with primary care manager

6.  The applicant's complete medical records are not available for review.

7.  The applicant's DD Form 2808 (Report of Medical Examination), dated 9 September 2003, shows:

* item 40 (Clinical Evaluation – Psychiatric) – diagnosed with bipolar disorder
* item 77 (Summary of Defects and Diagnoses) –

* to Community Mental Health on 4 December 2003 at 1400
* tobacco abuse
* bipolar – states on medication

8.  The applicant's DD Form 2807-1 (Report of Medical History), dated 9 September 2003, shows:



* item 15 (Have You Ever Had or Do You Now Have), the applicant checked "yes" for the following –

* dizziness or fainting spells
* frequent or severe headache
* a head injury, memory loss, or amnesia
* a period of unconsciousness or concussion

* item 17 (Have You Ever Had or Do You Now Have), the applicant checked "yes" for the following –

* nervous trouble of any sort (anxiety or panic attacks)
* loss of memory or amnesia, or neurological symptoms
* frequent trouble sleeping
* received counseling of any type
* depression or excessive worry
* being evaluated or treated for a mental condition

* item 29 (Explanation of "Yes" Answers) –

* he had an incident where he was struck in the head about 2 weeks ago and has suffered all of the above ever since
* he is also bipolar – he was diagnosed as bipolar in February 2003 and he suffered from all of the above
* he was hospitalized for the head laceration in August 2003

* item 30 (Examiner's Summary and Elaboration of all Pertinent Data) –

* applicant diagnosed with bipolar disorder and placed on Wellbutrin in February 2003
* applicant stopped prescription in June 2003
* applicant last seen by Community Mental Health in August 2003
* applicant at home, was beaten/robbed approximately 2 weeks prior
* now applicant has headaches and dizziness

9.  The applicant's DA Form 3822-R (Report of Mental Status Evaluation), dated 16 December 2003, shows he was seen for a chapter 14 (Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel)) evaluation.  The applicant refused treatment at that time but could follow up at Community Mental Health at any time.  He met retention standards and there was no psychiatric reason that warranted disposition through medical channels.  He was psychiatrically cleared for any administrative action deemed appropriate by his command.

10.  On 4 February 2004, his immediate commander notified him of his intent to initiate separation action against him for consistently missing formations, being disrespectful, and lacking motivation in accordance with Army Regulation 
635-200, chapter 14.

11.  The applicant acknowledged notification of the commander's intent to recommend his separation.  He consulted with legal counsel and 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 also elected to submit statements on his own behalf expressing his desire to remain in the Army.  In his acknowledgement, 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
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

12.  On 20 February 2004, the applicant's discharge was found to be legally sufficient.

13.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed characterization of his service as general.

14.  On 6 April 2004, the applicant was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 4 years, 9 months, and 12 days of creditable active military service.  His DD Form 214 also shows:

* his service in Southwest Asia during the period 3 February through 1 August 2003
* his narrative reason for separation as "misconduct"

15.  On 10 June 2010, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

16.  The applicant provides a 2-page extract of the Policy Guidance for Deployment-Limiting Psychiatric Conditions and Medications, dated 7 November 2006, issued by the Assistant Secretary of Defense for Health Affairs.  The purpose of the policy is to provide guidance on deployment and continued service in a deployed environment for military personnel who experience psychiatric disorders and/or who are prescribed psychotropic medication.

	a.  Paragraph 4.1.4.1, states that all conditions that do not meet retention requirements or that render an individual unfit or unsuitable for military duty should be appropriately referred through service-specific medical evaluation boards or personnel systems.

	b.  Paragraph 4.1.4.2, states psychotic and bipolar disorders are considered disqualifying for deployment.

	c.  Paragraph 4.1.4.3, states members with a psychiatric disorder in remission or whose residual symptoms do not impair duty performance may be considered for deployment duties.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	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.

	c.  Paragraph 1-35 of Army Regulation 635-200 states that when the medical treatment facility or the attending medical officer determines 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 evaluation board (MEB).  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial convening authority over the member concerned.  The commander exercising general court-martial convening authority 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.

18.  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.  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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	a.  Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

	b.  Appendix B, paragraph B-3c (Failure to Comply with Prescribed Treatment), states that if a Soldier unreasonably fails or refuses to submit to medical treatment or therapy – or take prescribed medications – or observe prescribed restrictions to diet, activities, or the use of alcohol, drugs, or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the proper medical course of treatment, therapy, medication, or restriction.

	c.  Appendix B, paragraph B-3f, states that conditions that do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.

19.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Chapter 3 defines the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required.  Paragraph 3-3b states that Soldiers pending separation in accordance with the provisions of Army Regulations 635-200 authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB.  In the case of the enlisted Soldier, the physical disability processing and the administrative separation processing will be conducted in accordance with the provisions of Army Regulation 635-200 and Army Regulation 635-40.

20.  Army Regulation 40-400 (Patient Administration), paragraph 2-9 states that if a Soldier refuses surgery, other treatment, or other diagnostic procedure, which is considered necessary to enable the person to properly perform their duties, the provisions of Army Regulation 635-200 apply.

21.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code "JKA" is "misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he was medically discharged was carefully considered.

2.  With respect to upgrading his characterization of service:

	a.  His actions of theft clearly brought discredit upon himself and the Army.  Additionally, his service was marred by other misconduct as evidenced by his previous nonjudicial punishment for being AWOL, failing to go to his appointed place of duty, and numerous counseling sessions.

	b.  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, his Report of Mental Status Evaluation found he had no psychiatric condition warranting disposition though medical channels.

4.  The available medical records provided by the applicant do not appear to be complete.  The available records show a diagnosis of bipolar disorder.  However, the records also show the applicant was treated with Wellbutrin in February 2003 and he stopped taking the medication in June 2003 while he was deployed.  In December 2003, he was psychiatrically cleared for any administrative action deemed appropriate by his command and he refused treatment at that time.  His refusal of treatment was willful and, therefore, he was ineligible for consideration for disability compensation.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

6.  The applicant cites a policy memorandum that was not in effect at the time of his separation.  He failed to show through the evidence submitted or the evidence of record that he should have been processed for separation due to physical disability.  In view of the circumstances in this case, he is not entitled to 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)                                         AR20120021878



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ABCMR Record of Proceedings (cont)                                         AR20120021878



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