IN THE CASE OF:	  

		BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120022346 


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 records to show he was medically retired instead of discharged for misconduct.

2.  The applicant states he had gone through the integrated disability evaluation system (IDES), including a medical evaluation board/physical evaluation board (MEB/PEB), and the Department of Veterans Affairs (VA) had awarded him a 100 percent service-connected disability rating for post-traumatic stress disorder (PTSD), not otherwise specified (NOS) disorder, and prostate cancer, along with several other illnesses and injuries. 

3.  The applicant provides:

* Congressional correspondence
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 (MEB Proceedings)
* Multiple neuropsychological screening reports
* All Army Activity (ALARACT) Message 159/2012, dated 13 June 2012
* Medical statement of neurological evaluation
* VA rating decision
* Self-authored statement to the separation authority
* Self-authored biographical summary
* Administrative separation board summarized transcripts
* Separation approval memorandum


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 19 September 1959.  

2.  He enlisted in the Regular Army on 4 January 1977 and he held military occupational specialty (MOS) 76Y (Unit Supply Specialist) - now designated as MOS 92Y.

3.  He was honorably released from active duty on 29 May 1980 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

4.  He reenlisted in the USAR on 22 August 1982.  He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, including Southwest Asia, Bosnia, Iraq, and Afghanistan.  

5.  On 21 October 1999, the U.S. Army Human Resources Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  He attained the rank/grade of sergeant first class (SFC)/E-7 on 1 February 2002.  On 15 September 2003, the Commanding General (CG), U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC), Fort Bragg, NC, reprimanded the applicant for driving while intoxicated.  The reprimand stated he violated the law and his criminal conduct constituted a serious departure from the high standards of integrity, professionalism, and conduct expected from a senior noncommissioned officer (NCO).  The CG ordered the reprimand to be filed in the performance section of his official records. 

7.  He attained the rank/grade of master sergeant/E-8 on 1 July 2005.  From November 2007 to June 2009, he served as the Company First Sergeant (1SG) and principal advisor to the Company Commander, Headquarters and Headquarters Company, 354th Civil Affairs Brigade, USACAPOC, Riverdale, MD, regarding the health, welfare, and training of enlisted Soldiers. 

8.  He was ordered to active duty on 7 November 2009 and subsequently served in Iraq from 30 December 2009 to 16 August 2010.  He was honorably released from active duty on 28 September 2010.  



9.  He was ordered to active duty in support of Operation Enduring Freedom on 13 June 2011.  He was assigned to the 35th Civil Affairs, Detachment 26, Fort Meade, MD, and attached for mobilization to Headquarters and Headquarters Company, U.S. Army Support Activity, Fort Dix, NJ. 

10.  On or about 14 June 2011, the applicant tested positive for cocaine during a command urinalysis.  

11.  On 5 August 2011, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  

12.  On 19 October 2011, 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 – illegal drug use, with an under other than honorable conditions discharge.  

13.  On 19 October 2011, the applicant acknowledged receipt of the commander's notification to separate him.  He subsequently consulted with legal counsel 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 that were available to him.  He requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board, and he elected to submit a statement in his own behalf.  He further indicated:

* He understood he had until the date the separation authority orders/approves the separation to withdraw this waiver and request an administrative separation board
* He understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* He understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

14.  On 8 November 2011, he was advised that an administrative separation board would convene to hear his case and on 16 December 2011, he was advised of the location, composition, date, uniform, and other administrative issues.  Most importantly, he was advised of his rights as far as personal appearance, counsel, statements, and witnesses.

15.  On 30 November 2011, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order not to drive a motor vehicle because he did not possess a valid driver's license and for operating a motor vehicle without a valid driver's license.  

16.  On 7 February 2012, an administrative separation board convened at Fort Dix, NJ, with the applicant and his counsel present.  The administrative board adjourned on 21 February 2012.  This board, after having carefully considered the evidence, found by a unanimous vote that the applicant committed a serious offense proven by a preponderance of evidence.  The board recommended separation due to a serious offense with an under honorable conditions (general) characterization of service.  

17.  On 6 February 2012, the applicant was referred to a neurological screening at the Department of Tele-Health, Kimbrough Ambulatory Care Center, Arlington, VA.  The neurological screening report shows the applicant had/needed:

* Social and occupational impairments
* An MRI to determine cause of cognitive and emotional symptoms
* Continued individual/group therapy/treatment
* Continued medication management
* Follow-up neuropsychological assessment
* Various memory exercises

18.  On 18 May 2012, he underwent a separation physical.  His narrative summary shows he suffered from several conditions that failed to meet retention standards, specifically PTSD, depressive disorder (NOS), and cognitive disorder. 

19.  On 4 June 2012, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of PTSD, depressive disorder (NOS), and cognitive disorder.  He was also diagnosed with various other conditions that met retention standards, including hearing loss, myopia, lumbar degenerative disc disease, left knee degenerative joint disease, left foot hallux valgus, degenerative left foot joint disease, residual of old toe fracture, prostate cancer in remission, essential hypertension, alcohol abuse in remission, and cocaine abuse in remission.  The MEB recommended referral to a PEB.  There is no indication if he agreed or disagreed with the MEB's findings and recommendation or whether he desired/did not desire to continue on active duty.


20.  Subsequent to the findings of unfitness, he underwent an evaluation by the VA under the IDES.  The VA prepared and proposed a disability determination to assign to his unfit conditions for use by the Army in determining a final disposition of unfit conditions and to determine his potential entitlement to service-connected disability compensation.  On 12 August 2012, the VA proposed a rating of 100% for the unfitting condition of PTSD, depressive disorder, and cognitive disorder.  The VA also proposed the following rating for the other claimed disabilities:

* Prostate cancer 100%
* Tinnitus 10%
* Lumbar degenerative disc disease 0%
* Left knee degenerative joint disease 0%
* Left foot hallux valgus and degenerative joint disease, residual broken toe 0%
* Bilateral hearing loss 0%

21.  On 1 July 2012, the applicant was discharged from active duty accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 14-12(c) of Army Regulation 635-200 due to misconduct (drug abuse) with service characterized as under honorable condition (general).  He completed 1 year and 19 days of active service this period and he had 6 years,
7 months, and 29 days of prior active service.  He also had 28 years and 28 days of total prior inactive service.

22.  On 10 July 2012, a clinical neuropsychologist opined that based on the neuropsychological evaluation, the applicant was diagnosed with a cognitive disorder and PTSD.  He added that at the time of the administrative separation board, he testified that both conditions led directly to aberrant behavior.  The PTSD caused significant disturbances in his mood and the cognitive disorder limited his judgment.  

23.  On 10 July 2012, the separation authority, Colonel JAD, a general court-martial convening authority (GCMCA) stated that he reviewed the findings and recommendations of the administrative separation board, dated 21 February 2012, with enclosures and exhibits.  He also stated he reviewed the MEB proceedings, dated 4 June 2012.  After a careful consideration, he determined the applicant's medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendation of the administrative separation board and that other circumstances of his case did not warrant disability processing instead of further processing for administrative separation.  Based on this determination, he approved the administrative separation board.  


24.  The applicant will turn 60 on 19 September 2019 and may submit an application for retired pay at that time. 

25.  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 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 board. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising 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.

26.  ALARACT Message 159/2012, dated 13 June 2012, clarified enlisted administrative processing for Soldiers identified as not meeting medical retention standards.  It states except for separation in lieu of a court-martial, final disposition through the Army Physical Disability Evaluation System (PDES) takes precedence over administrative separation processing regardless of when the medical determination is made (either before, during, or after initiation of administrative separation):

	a.  The medical treatment facility commander or attending medical officer will refer Soldiers to an MEB who do not meet medical fitness standards for retention.  A finding that a Soldier does not meet medical fitness standards for retention includes when the second signature is applied to the DA Form 3349 (Physical Profile) establishing a permanent "3" or "4" in any PULHES factor for a duty-related condition.  

	b.  When either the military treatment facility commander or attending medical officer determined a Soldier does not meet retention standards, the separation authority will not take final action on the administrative separation board until a final medical retention determination is made.  

	c.  When the MEB determines referral to a PEB is warranted Soldiers will be referred to a PEB unless the Soldier is processing for administrative separation for fraudulent entry or misconduct.  When Soldiers are undergoing administrative separation for fraudulent entry or misconduct, the GCMCA must direct, in writing, whether to proceed with the PDES process or administrative separation.  The GCMCA's written directive must address whether the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation and/or whether other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.  

27.  Army Regulation 635-40 establishes the 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 PEB 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.

28.  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.

29.  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.

30.  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.

31.  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

32.  Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) governs the ASAP.  It identifies Army policy on alcohol and other drug abuse, and it identifies assigned responsibilities for implementing the program.  It states the ASAP is a command program that emphasizes readiness and personal responsibility.  The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier’s chain of command.  The command role in substance abuse prevention, drug and alcohol testing, early identification of problems, rehabilitation, and administrative or judicial actions is essential. 

	a.  Paragraph 1-7 states separation initiation authorities, in accordance with Army Regulation 635–200 (for enlisted Soldiers) retain their authority to make personnel decisions except that initiation of administrative separation is mandatory for all Soldiers identified as illegal drug abusers, for all Soldiers involved in two serious incidents of alcohol-related misconduct within 12 months and for all Soldiers involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs.  Additionally, when a Soldier tests positive for illicit drugs a second time or is convicted of driving while intoxicated/driving under the influence a second time during his/her career, the separation authority shall administratively separate the Soldier unless the Soldier is recommended for retention by an administrative separation board or show cause board (if eligible), under the provision of Army Regulation 635–200.  This authority may not be delegated and should have a prospective application. 

	b.  Paragraph 1-8 states alcohol and drug abuse by Soldiers and civilian corps members can seriously damage their physical and behavioral health, jeopardize their safety and the safety of those around them, and can lead to criminal and administrative disciplinary actions.  Alcohol and drug abuse is detrimental to a unit’s operational readiness and command climate and is inconsistent with Army Values and the Warrior Ethos.  The Army strives to be free of all effects of alcohol and drug abuse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a senior NCO and 1SG, in a position of responsibility, and preparing to go to combat, tested positive for cocaine.  Accordingly, his chain of command initiated separation action against him for misconduct under the provisions of chapter 14 of Army Regulation 635-200.  He appears to have been advised of his rights and selected a personal appearance before an administrative separation board.  
2.  An administrative separation board convened with the applicant and his counsel present.  This board, after having carefully considered the evidence, found by unanimous vote that the applicant committed a serious offense was proven by a preponderance of evidence.  The board recommended separation due to a serious offense with a general characterization of service.  

3.  Shortly after the administrative board adjourned, the applicant underwent a separation physical to determine his medical fitness.  He was found to have the medically unacceptable conditions of PTSD, depressive disorder, and cognitive disorder.  This prompted an MEB.  An MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of PTSD, depressive disorder (NOS), and cognitive disorder.  The MEB recommended his referral to a PEB.  

4.  Subsequent to the findings of unfitness, he underwent an evaluation by the VA under the IDES.  The VA proposed a disability determination to assign his unfit conditions for use by the Army in determining a final disposition of unfit conditions at the rate of 100% for the unfitting condition of PTSD, depressive disorder, and cognitive disorder.  The VA also proposed ratings for the applicant's other claimed disabilities.

5.  The applicant's diagnosis of PTSD and depressive/cognitive disorders are well documented in his MEB and VA proposed rating.  They are not in question.  Additionally, the MEB's recommendation for referral to a PEB is also not in question.  However, as the ALARACT message states, Soldiers are referred to a PEB unless the Soldier is processing for administrative separation for misconduct.  When Soldiers are undergoing administrative separation for misconduct, the GCMCA must direct, in writing, whether to proceed with the DES process or administrative separation.  The GCMCA's written directive must address whether the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation and/or whether other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.  

6.  The separation authority in this case, a GCMCA, stated that he reviewed the findings and recommendations of the administrative separation board with enclosures and exhibits as well as the MEB proceedings.  Those enclosures 

included the clinical neuropsychologist’s board testimony that the applicant’s cognitive disorder and PTSD led directly to his aberrant behavior.  

7.  After a careful consideration, the GCMCA determined the applicant's medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendation of the administrative separation board.  It is presumed that the GCMCA weighed the neuropsychologist’s testimony against the other evidence presented and, as was within his authority, determined that the preponderance of the evidence warranted further administrative separation processing instead of disability processing.  Based on this determination, he approved the administrative separation board.

8.  Disability compensation is not an automatic 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.  Here, the applicant's active duty service was primarily interrupted by his use of cocaine, not by any medical conditions. 

9.  The applicant 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 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)                                         AR20120022346



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022346



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1