IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20130002385 


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 consideration of his medical records by a medical evaluation board (MEB).

2.  The applicant states:

* By regulation, Soldiers being separated for misconduct under Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14 and who do not meet retention standards are referred to an MEB
* The general court-martial convening authority (GCMCA) must make a determination if a case should be processed for disability
* Between April and May 2010, he was referred to a physical evaluation board (PEB) but it never occurred
* As such, the GCMCA never determined if his case should be disposed of through medical channels vice administrative channels
* He believes his medical condition was the direct and substantial contributing factor that led to his misconduct and ultimate discharge
* The GCMCA did not consider if his (the applicant's) 12 years of service,
3 combat tours, and multiple decorations warranted disability processing

3.  The applicant provides:

* administrative separation packet
* selected medical records
* psychiatric evaluations
* letter from the Office of the Surgeon General (OTSG)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 January 2000 and he held military occupational specialty (MOS) 13R (Field Artillery Firefinder Radar Operator).

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Iraq from November 2003 to November 2004, June 2006 to September 2007, and December 2009 to May 2010; and he attained the rank of sergeant first class (SFC)/E-7 on 1 July 2008.

3.  He was awarded or authorized the:

* Army Commendation Medal (3rd Award)
* Army Achievement Medal (5th Award)
* Army Good Conduct Medal (3rd Award)
* National Defense Service Medal
* Iraq Campaign Medal with three bronze service stars
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Noncommissioned Officer Professional Development Ribbon with
numeral 3
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Joint Meritorious Unit Award
* Meritorious Unit Commendation
* Combat Action Badge
* Parachutist Badge
* Driver and Mechanic Badge with Driver-W Bar

4.  He was assigned to 1st Battalion, 37th Field Artillery Regiment, Fort Lewis, WA.

5.  On 10 and 11 April 2010, an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was conducted by an official of the 3rd Stryker Brigade Combat Team, 2nd Infantry Division, in Iraq.  An investigating officer (IO) determined the applicant:

* on or about 13 March 2010, committed an assault upon a private first class (PFC)/E-3 NL by cutting his right calf with a dangerous weapon
* on 5 April 2010, unlawfully strike specialist (SPC)/E-4 JH in the face with a closed fist causing him to suffer a black eye
* did unlawfully strike SPC HK in the face with a closed fist causing him to suffer a cut to his lower lip

6.  The IO recommended preferral of court-martial charges against the applicant for assault, making a false statement, and failing to obey an order.

7.  On 10 May 2010, the applicant underwent a behavioral science evaluation at Forward Operating Base (FOB) Warhorse in Iraq.  The licensed independent social worker stated:

	a.  The applicant had been seen in the clinic for six sessions beginning in February 2010.  He was referred for treatment due to panic attacks and he had a working diagnosis of panic disorder.  He displayed frightening and intense symptoms and experienced panic attacks with increased frequency.  His physical assault against other Soldiers was of concern.

	b.  His behavior was consistent with an antisocial personality and his thoughts were geared toward persecuted aggressiveness, deceitfulness, and indifference. His behavioral/mental issues were compounded by the fact that he was under investigation, deployment stressors, and a feeling of isolation.  He appeared not to have met retention standards and he should receive psychiatric care and be referred to a PEB.

8.  On 13 September 2010, the applicant submitted a medical document, authored by a staff psychiatrist at Madigan Army Medical Center, Fort Lewis, WA.  The staff psychiatrist stated the applicant had been under his care for an anxiety disorder and that while he (the psychiatrist) was not in a position to comment on the cause of the behavior that resulted in his medical evacuation, he believed there was a possibility that sleep deprivation and the medication he was taking may have been contributory. 

9.  On 12 February 2011, local authorities in Pierce County, WA, were dispatched to the applicant's home due to an alleged domestic altercation that ended/resulted in shots being fired.  The applicant's wife later reported the applicant had been drinking all day and he was angry.  He pulled his gun and fired two shots at the ground.  She was two feet away from where the shots were fired.  She recovered the gun from him.  The applicant was arrested and initially charged with reckless endangerment/domestic violence.  He was held at the Pierce County jail overnight and he was released to military authorities the next day.  He then attended a court hearing on 14 February 2011 and he was formally charged with the domestic violence and unlawfully carrying or handling a weapon capable of producing bodily harm and domestic violence.  He was also issued a "No contact” order with his wife until his pre-trial hearing on or about 15 March 2011.  Furthermore, the judge issued an order against the consumption of alcohol and possession/use of firearms until his pretrial hearing.

10.  On 14 February 2011, his immediate/company commander ordered his referral to and enrollment in the Army Substance Abuse Program (ASAP), for alcohol and/or drug education.  Additionally, on 14 February 2011, his immediate/company commander took a series of actions including referring the applicant to mental health for a command-directed evaluation.

11.  On 10 March 2011, he was reprimanded by the Commanding General (CG), I Corps and Fort Lewis, for misconduct.  The GOMOR states in April 2010, while deployed to Iraq as a platoon sergeant, he assaulted Soldiers in his platoon on at least three separate occasions and mistreated other Soldiers.  Specifically, without provocation he first struck a Soldier on the face with a box, then assaulted another Soldier by hitting him on the mouth, and later assaulted a Soldier with a video game controller.  He then exceeded the boundary of his authority when he mistreated Soldiers in his platoon and degraded them.  He conducted himself in a manner showing complete disregard for his Soldiers and the professional standards of the U.S. Army and the command.  He demonstrated extremely poor judgment and lack of control.  

12.  The applicant acknowledged receipt and submitted a rebuttal wherein:

* he accepted full responsibility and accountability for his actions in regard to the four incidents
* he indicated that shadow-boxing and various forms of fighting were common in the platoon
* he made an extremely poor error in judgment after he had been awake for over 72 hours and on prescribed sleep/anxiety medications
* he had no recollection of striking the Soldier on the mouth while the other incident was a form of horseplay
* he did not mistreat subordinates; he set high standards that on one occasion were not followed
* he had extreme bouts of anxiety and panic attacks; he also had a vocal cord dysfunction
* his symptoms persisted even after returning to Iraq that forced him to go seek combat stress counseling in January 2010
* he was evacuated from the theater and prescribed medications but upon returning from Iraq, he made great progress in treating his anxiety and panic attack symptoms

13.  On 4 April 2011, his intermediate/battalion commander recommended the GOMOR be placed in his official Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  He opined that:

	a.  The applicant was confused with regard to the definition of his position and his responsibilities as a noncommissioned officer (NCO) and senior leader, and the subsequent maltreatment of Soldiers and fraternizing with his Soldiers.  At no time had a medical provider ever distinctly linked the applicant's behavior to his medication and a possible sleep disorder.  He (the battalion commander) found it disturbing that the applicant never told the battery or the chain of command about his panic attacks and the prescription drugs he was taking until he was under investigation for maltreating battalion Soldiers.  He placed the lives and welfare of Soldiers at risk – just with the consumption of those medications, let alone his inability to lead, teach, and mentor.

	b.  He claims his mistreatment of Soldiers was a form of a corrective training but he conveniently dismissed the fact that he was not on said prescribed medication at the time and he hazed nearly 50 Soldiers that afternoon from all four batteries, not just his platoon.

	c.  His cavalier attitude and immature and unprofessional demeanor have caught up to him.  It is clear he has an excuse for all his unprofessional acts.  However, at the end, he openly accepts full responsibility for his actions.  This indicates he has always known what he was doing.  He failed to exercise personal and professional common sense and restraint while in a senior leader position. 

14.  On 5 April 2011, his senior/brigade commander recommended the GOMOR be placed in his AMHRR and opined that as an NCO, the applicant was charged with the health and welfare of Soldiers and their families, not assaulting them.  His conduct exemplified fraternization and tarnished the NCO corps.

15.  On 5 May 2011, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant as well as the chain of command's recommendations, the CG ordered the GOMOR be placed permanently in the applicant's AMHRR.  

16.  On 16 September 2011, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to military control on 20 September 2011.

17.  On 21 June 2012, the applicant was observed by a State Trooper operating his vehicle and weaving back and forth.  Upon approach, the authority detected an odor on his breath.  He was administered a standard field sobriety test that confirmed his impairment.  He was apprehended and charged with driving under the influence (DUI) of alcohol.

18.  On 25 June 2012, he was reprimanded by the CG, I Corps (Rear/
Provisional) for driving under the influence.   The GOMOR states he was apprehended by civil authorities for suspicion of DUI.  His conduct was not tolerated and there was no excuse for his complete disregard for the law and policies of the state and/or the Army.  As an NCO, he was entrusted with some of the most important duties in today's Army.  He failed to meet the standards expected of him as an NCO.  

19.  The applicant acknowledged receipt of the GOMOR and indicated he desired to submit a rebuttal; however, his rebuttal is not available for review.

20.  On 6 August 2012, his immediate/battery commander recommended the GOMOR be placed in his AMHRR and stated the applicant had participated in the ASAP and he completed the program.  He was enrolled again for treatment of alcohol dependence.

21.  On 6 August 2012, his intermediate/battalion commander also made a similar recommendation and commented that this was not the first incident involving the applicant.

22.  On 7 August 2012, he was referred for a psychological evaluation at Madigan Army Medical Center.  The provider, a doctor of psychology, conducted a thorough screening for post-traumatic stress disorder (PTSD) as well as traumatic brain injury (TBI) but the applicant was found negative for both.  The clinical interview revealed significant mental health issues that indicated the applicant did not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He required further evaluations and possible referral to an MEB.  He was not cleared for administrative separation.

23.  On 26 September 2012, his senior/brigade commander recommended the GOMOR be placed in his official AMHRR and opined that part of being accountable and part of the consequences for his behavior described in the GOMOR, is a permanent filing in his AMHRR.

24.  At a later date, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant, as well as the chain of command's recommendations, the CG ordered the GOMOR be placed permanently in the applicant's AMHRR.

25.  On 17 October 2012, the applicant underwent a mental status evaluation and he was found "Fit for Duty."  The clinical psychologist indicated the applicant's cognition was normal, behavior was cooperative, and perception was normal.  He was occasionally impulsive and had suicidal thoughts.  He could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and he met the medical retention standards. The clinical psychologist also stated:

	a.  The applicant was screened for PTSD and TBI but these conditions were either not present or if they were, they did not meet Army Regulation 40-501 criteria for an MEB.

	b.  The applicant was previously diagnosed with PTSD from his ASAP provider; however, the applicant did not meet the criteria for PTSD at this time.  He had several symptoms that can be attributed to his anxiety disorder but did not cause him to fail the retention standards of Army Regulation 40-501, chapter 3.

	c.  The applicant's symptoms did not significantly impact his ability to complete his job.  His legal, unit, and family stressors were large contributors to his anxiety symptoms but he was cleared for administrative actions to include chapter 14.  It is recommended he continue therapy to address current symptoms.

	d.  He was screened for PTSD and TBI.  All positive screens require a comprehensive evaluation.  Results of his screening were negative for PTSD and negative for TBI.  

26.  On 17 October 2012, the applicant's immediate commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12(c) for misconduct – specifically for assaulting his wife, brandishing a weapon capable of causing bodily injury, assaulting subordinate Soldiers, DUI, being AWOL, making a false official statement, dereliction of duties, and failing to report to his appointed place of duty.  The immediate commander recommended an under other than honorable conditions discharge.

27.  On 17 October 2012, the applicant acknowledged receipt of the notification to separate him.  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 waived consulting counsel and representation by military and/or civilian counsel, waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and he elected not 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 a discharge under other than honorable conditions

28.  On 18 October 2012, the Chief Executive Officer of a non-profit organization – Our Forgotten Heroes – wrote to The Surgeon General to intervene on behalf of the applicant and prevent his pending discharge.  He chronicled the applicant's service and indicated that the applicant was found fit for duty, including deployment on 17 October 2012, that allowed his command to proceed with the administrative separation and that if the applicant were to receive an under other than honorable conditions character of service, he would not be entitled to therapy and/or treatment through the Department of Veterans Affairs.

29.  On 19 October 2012, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14-12c.  The immediate commander stated the applicant failed to show retainability and remained unqualified due to an AWOL history, a domestic abuse incident, DUI, and assault.  Immediate discharge was recommended.

30.  On 22 October 2012, the applicant's intermediate/battalion commander reviewed the separation packet and after consideration of all matters, he recommended immediate separation with the issuance of an under other than honorable conditions discharge.

31.  On 23 October 2012, the applicant's senior/brigade commander reviewed the separation packet and after consideration of all matters, he recommended immediate separation with the issuance of an under other than honorable conditions discharge.

32.  On 23 October 2012, the applicant attended a 90-minute assessment interview by a licensed marriage and family therapist associate (LMFTA) at the request of "Our Forgotten Heroes" organization.  He reported trouble with his daily life and alleged his diagnosis was changed from PTSD to another diagnosis and that he sought a second opinion.  He also reported sleep disturbance, agitation, irritability, anxiety, obsessive thoughts, and panic attack.  The LMFTA provided a provisional diagnosis of PTSD (Axis I), vocal cord disorder, and sleep disorder (Axis III); and problems with occupation, involvement with legal system, and problems related to social environment (Axis IV).

33.  On 25 October 2012, the separation authority, the CG, 7th Infantry Division and GCMCA, stated he reviewed the information pertaining to the applicant and the recommendations that the applicant be separated prior to the expiration of his current term of service under the provisions of Army Regulation 635-200
chapter 14, commission of a serious offense.  As a result, he approved the separation action and directed the applicant be discharged with an under other than honorable conditions discharge.

34.  On 13 November 2012, the applicant was again referred for a mental status evaluation by the "Our Forgotten Heroes" organization at a civilian counseling services organization.  A licensed mental health counselor (LMHC) stated that no supportive documentation was provided for this evaluation but based on a
90-minute interview process she was able to diagnose the applicant with chronic PTSD and alcohol dependence (Axis I); problems with legal system, primary supports, secondary environment, occupation, and housing (Axis IV); and serious symptoms/impairment in functioning (Axis V).

35.  On 21 November 2012, the applicant was discharged from active duty.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c) due to misconduct (serious offense) with service characterized as under other than honorable conditions.  He completed 12 years, 8 months, and 23 days of creditable active service with periods of time lost from 16 to 19 September 2011 and 5 September to
16 October 2012.

36.  On 5 February 2013, by letter to the Board, the Deputy Surgeon General, OTSG stated:

	a.  The applicant's medical records were reviewed by the Chief, Operations Branch, Behavioral Health Division, OTSG.  Upon review, it was determined his medical records contain an extensive behavioral health treatment history which includes treatment by the ASAP for alcohol dependence, treatment for panic disorder not otherwise specified (NOS), and treatment for anxiety disorder, NOS. Several notes also reported PTSD.  His administrative separation under Army Regulation 635-200, chapter 14-12 (misconduct) prevented appropriate consideration of his anxiety disorder (NOS) that appears to have been incurred in the course of combat and was characterized by a persistence or recurrence of symptoms that resulted in interference with effective military performance.

	b.  He believes there was an error in processing his administrative separation. He was not provided his rights wherein a GCMCA may direct a Soldier be processed through the physical disability evaluation system if the GCMCA determines that the medical condition was the direct or the substantial contributing cause of the misconduct that led to the recommendation for administrative separation or if the GCMCA determines that other circumstances of his case warranted disability processing instead of administrative processing.

	c.  In light of the above, the OTSG supports the applicant’s request for an MEB.  If it had been within the legal authority of OTSG to grant him an MEB, it would have been so ordered; however, OTSG does not have that authority.

37.  On 4 April 2013, the Deputy Surgeon General, OTSG, provided additional input/feedback regarding the applicant's mental health condition.  He stated in the Fall of 2012, his office became aware of the issues surrounding the applicant's discharge.  A review of his medical records by the Behavioral Health Division, OTSG is shown below.  In April 2012, a determination was made that the applicant did not meet medical retention standards of Army Regulation
40-501 that should have triggered an MEB.  The treating physician wanted to offer more therapy but the administrative separation prevented the Army from fully considering his condition which appears to have been incurred in the course of combat and resulted in interference with effective military performance.  The GCMCA was unable to consider his medical and behavioral health conditions as a mitigating circumstance or ask for a concurrent MEB or medical review.  In light of these facts, OTSG requests the Board consider two courses of action:

* order the Medical Command to provide the applicant with an MEB that would allow a more accurate adjudication of his case
* consider the mitigating factors for a Soldier who served in three deployments and reached the rank of SFC and change his dishonorable discharge to an uncharacterized discharge

38.  With this opinion, the Deputy Surgeon General provided a Behavioral Health Division review of the applicant's records conducted by the Director of Health Care Delivery, OTSG, on 27 March 2013.  The Director states:

	a.  The applicant has a complex behavioral health history that contains conflicting diagnostic conclusions by credentialed providers.  Her office found that the evaluation conducted on 7 August 2012 is the best supported by documented symptoms and diagnostic formulation.  This evaluation concludes that the Soldier fell below medical retention standards in Army Regulation 40-501 and forms the basis for her recommendation.

	b.  The 1 August 2012 evaluation was conducted to rule-out any condition that would warrant disposition via medical channels.  The provider conducted a mental status evaluation, a clinical interview, and administered screens for depression, anxiety, PTSD, and TBI.  The results of this evaluation in accordance with the DSM-IV-TR [Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision] were the following diagnoses:

* Axis I: History of PTSD and Alcohol Dependence
* Axis II: Deferred
* Axis III: Deferred to medical provider

He was not cleared for administrative and/or disciplinary action and he was determined to have failed medical retention standards in accordance with Army Regulation 40-501, chapter 3.

	c.  His next Behavioral Health evaluation was conducted on 17 October 2012. The provider conducted a mental status evaluation, a clinical interview and a review of medical records, as well as administered screens for PTSD and TBI. The result of this evaluation in accordance with the DSM, IV-TR was the following:

* Axis I: Anxiety Disorder NOS
* Axis IT: Not Applicable
* Axis Ill: Not Applicable

He was cleared for administrative and/or disciplinary action, as he met medical retention standards in accordance with Army Regulation 40-501, chapter 3; however, the clinical documentation did not fully support the diagnostic changes. The description of the course of previously-documented symptoms is absent from the record.

	d.  In addition, in April 2010, approximately 2 years prior, a determination had also been made that he did not meet medical retention standards in accordance with Army Regulation 40-501 and he would be referred to an MEB for disposition. It appears the referral to an MEB was not made at that time for unknown reasons.  The record indicates that on 6 August 2012, military separation was initiated against him under the provisions of Army Regulation 635-200, paragraph 14-12.  He was released from active duty on 21 November 2012.  His DD Form 214 shows his narrative reason for separation as "Misconduct."

39.  The applicant was furnished with a copy of this communication with the OTSG to provide him the opportunity to respond.  On 9 April 2013, he submitted a statement wherein he agreed with the Deputy Surgeon General's updated opinion.

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

	a.  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.

	b.  Paragraph 1-35 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.

41.  All Army Activities (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 determines 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.

42.  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.

43.  Army Regulation 40-501, 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.

44.  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.

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

	a.  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.

	b.  physical fitness test – whether the member is medically prohibited from taking the respective service's required physical fitness test.

	c.  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.

	d.  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

46.  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.  

	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 in a position of responsibility and in combat, was investigated for various serious infractions that included assault and maltreatment of subordinates.  Despite placing Soldiers at risk, given the tactical situation and given his service, his chain of command decided on administrative measures through the use of a GOMOR that is a tool for teaching proper standards of conduct and performance and do not constitute punishment.  Accordingly, he was reprimanded for this misconduct.

2.  As he rotated back to Fort Lewis, his misconduct continued.  First, he went AWOL, then he was arrested by civil authorities for a domestic violence charge involving a weapon.  He was then arrested for a DUI charge and he was again reprimanded by a GOMOR for his behavior.  His chain of command then initiated separation action against him for misconduct under the provisions of Army Regulation 635-200, chapter 14.  He was advised of his rights and elected to waive his rights.

3.  Before making their recommendations, each commander in his chain of command carefully reviewed his separation packet including the psychiatric evaluations, as well as medical documents presented by him.  There was no reason for his commanders to dismiss these documents.  When the separation authority reviewed the proposed separation action, he exercised his authority and approved the discharge action.  The applicant was accordingly discharged.

4.  The applicant raises several issues:

	a.  He contends that by regulation, Soldiers being separated for misconduct under chapter 14 and who do not meet retention standards are referred to an MEB.  This is true.  However, nowhere does the applicant show he was found not to have met retention standards.  His record does not contain a permanent physical profile that prevented him from performing the duties required of his MOS or grade.  A diagnosis of an illness or impairment does not equate to a finding of failure to meet retention standards.  In fact, the mental status evaluation on 17 October 2012 clearly showed he met retention standards.  This mental status evaluation was available to the chain of command when they made their recommendations and the separation authority when he rendered his decision. 

	b.  He contends that the GCMCA must make a determination if a case should be processed for disability.  This is true if the GCMCA was presented with a diagnosed illness or injury that prevents a Soldier from performing the duties required of his grade or military specialty.  The applicant's statement of contention is misleading since no such finding of unfitness was available or required.

	c.  He contends the GCMCA never determined if his case should be disposed of through medical channels vice administrative channels.  This is true.  However, the GCMCA is not required to make this determination unless the medical treatment facility commander or attending medical officer finds that the Soldier does not meet retention standards.  Since the applicant met retention standards, his case could not be disposed of through medical channels.


	d.  He contends the GCMCA did not consider if his 12 years of service,
3 combat tours, and multiple decorations warranted disability processing.  On the contrary, his assault charges and maltreatment of subordinates in Iraq carried a more severe sentence had court-martial charges been preferred against him.  It appears his chain of command considered his combat tours and service by only reprimanding him.  However, after the domestic abuse, gun charge, AWOL, and DUI, it became clear that his serious misconduct and disregard of authority outweighed and tarnished his service.

5.  The Deputy Surgeon General supports the applicant’s request: 

	a.  The Deputy Surgeon General indicated he believed the applicant's medical condition was the direct or the contributing cause of the conduct that led to the recommendation for discharge.  

	b.  The applicant’s application is significantly lacking when it comes to mental health documents.  The Board only has two assessments by two civilian providers and one official Army mental status assessment.  In this regard, nowhere does the applicant provide evidence that he was found to have any medically unacceptable conditions at the time of discharge.  

6.  Nevertheless, given the applicant's possible diagnosis of PTSD, it is reasonable to presume that despite the applicant's extensive misconduct, had the GCMCA been fully aware of all the facts and circumstances, particularly the possibility of the applicant having PTSD, it is reasonable to presume he may have elected a different route and at least allowed the applicant's medical records to be considered by an MEB vice proceeding with the administrative separation.

7.  Therefore, as a matter of equity, in view of the Deputy Surgeon General's evaluation of behavioral issues pertaining to the applicant, the applicant's records should be referred to an MEB to determine if any of the applicant’s conditions warrant a disability rating and the applicant should be afforded the opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation.

8.  Accordingly, the Office of the Surgeon General should take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility 

(without applicant’s concurrence) that has the capability to properly evaluate the applicant’s medical condition.

9.  In the event that a determination is made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his original separation date with entitlement to any back pay and allowances and/or retired pay due him.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Having the Office of the Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.

	b.  In the event that the applicant requires a medical evaluation board and/or physical evaluation board, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing a medical evaluation board and/or a physical evaluation board.

	c.  Should a determination be made that the applicant should have been separated under the Physical Disability Evaluation System, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with 
entitlement to all back pay and allowances and/or retired pay, less any entitlements already received.


     d.  Should a determination be made that the applicant met retention standards, his current administrative separation will stand as valid.



      ___________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)                                         AR20130002385



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ABCMR Record of Proceedings (cont)                                         AR20130002385



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