IN THE CASE OF:	  

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130002520 


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 that his discharge be voided and he be reinstated to active duty and processed under the U.S. Army Physical Disability Evaluation System (PDES). 

2.  The applicant states leadership was not willing to support his request because of his chronic medical issues which the leadership at the time believed was problematic.  However, he feels the medical community was unwilling to make a medical determination of his fitness for the Army due to his medical issues associated with his mental health and physical arm problems.

3.  The applicant provides copies of medical records from his active duty records, Department of Veterans Affairs (VA) medical records, VA Rating Decision, a letter of support from his congressional representative, and associated emails. 

CONSIDERATION OF EVIDENCE:

1.  After serving 4 years of prior active service as an infantryman, the applicant again enlisted in the Regular Army in the pay grade of E-5 on 1 March 2005 for a period of 3 years and assignment to Fort Bragg, North Carolina.  He was promoted to the pay grade of E-6 on 1 December 2005.

2.  His records show that he deployed to Iraq during the periods 20030310 – 20040128 and 20050903 – 20051228.  However, available evidence also shows that in 2007 he sustained gunshot wounds to the left arm and trunk while in Iraq, indicating that he actually served three tours in Iraq.
3.  On 18 April 2009, he reenlisted under the Bonus Extension and Retraining (BEAR) Program in military occupational specialty (MOS) 38B – Civil Affairs Specialist for a period of 6 years and a selective reenlistment bonus of $39,000.

4.  On 23 May 2010, nonjudicial punishment (NJP) was imposed against him for the wrongful possession of un-prescribed prescription medications and drug paraphernalia.

5.  On 7 February 2011, NJP was imposed against him on 7 February 2011 for failure to go to his place of duty.

6.  On 20 May 2011, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  He cited the offenses for which NJP was imposed as the basis for his recommendation.  

7.  After consulting with defense counsel, the applicant elected to exercise his right to appear before an administrative separation board represented by counsel.  He declined the opportunity to submit a statement in his own behalf.

8.  The applicant was notified that he was to appear before an administrative separation board on 12 August 2011.  On 9 August 2011, his defense counsel submitted a request for a conditional waiver or withdrawal of charges against the applicant.  He requested that the applicant be retained with immediate reclassification of his MOS.  The convening authority disapproved the defense counsel’s request on 10 August 2011.

9.  The administrative separation board convened as scheduled and after reviewing all of the available evidence, found that the allegations against the applicant were supported by a preponderance of the evidence and recommended that he be discharged with a General Discharge Certificate.

10.  On 1 September 2011, the convening authority approved the findings and recommendations of the administrative separation board and directed that the applicant be given a general discharge.

11.  On 31 October 2011, the convening authority approved a request from the applicant’s unit to postpone his separation for 90 days to allow him to complete required medical treatment.  The convening authority directed that he be separated on 31 January 2012.

12.  Accordingly, he was discharged under honorable conditions in the pay grade of E-5 on 31 January 2012 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct due to commission of a serious offense.  He had served 6 years and 11 months of active service during his current period of service for a total of 10 years and 11 months total active service.

13.  A review of his evaluation reports shows that as of his last report ending on 28 February 2011, the applicant exceeded the Army standards for physical fitness.  His records contain no evidence showing that he had any unfitting conditions at the time of his discharge.

14.  The VA Rating Decision, dated 31 October 2012, submitted by the applicant shows that he was granted a 70 percent service-connected disability rating for Post-Traumatic Stress Disorder with traumatic brain injury effective 1 February 2012 as well as service connection for tinnitus, deep nonlinear scars of the left upper extremities, painful scars of the left upper extremities and right lower extremity, scar for right lower extremity, residuals of right ankle sprain, left hand residuals of reflex sympathetic dystrophy of the left arm, left shoulder strain, left elbow strain and left arm reflex sympathetic dystrophy with impairment of supination and pronation, left elbow strain and left arm reflex sympathetic dystrophy with limitation of extension, lumbar strain, radiculopathy of left lower extremity as secondary to service-connected disability of lumbar strain and radiculopathy of right lower extremity as secondary to the secondary to the service-connected disability of lumbar strain. 

15.  There is no evidence in the available records to show that he has applied to the Army Discharge Review Board for an upgrade of his discharge.

16.  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. 

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an 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.  This regulation also provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

18.  Army Regulation 40-400 (Medical Services – Patient Administration), paragraph 7-1, provides that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the PDES.  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MOS medical retention board.  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB liaison officer.  MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the member's medical status.

19.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

20.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.




DISCUSSION AND CONCLUSIONS:

1.  In order to be eligible for an MEB or processing under the PDES, an individual must have at least one unfitting condition and there is insufficient evidence to show that such was the case here.  He was deemed fit for retention and separation by competent medical authorities prior to his discharge.  Accordingly, he was properly discharged under the provisions of Army Regulation 635-200, chapter 14, due to misconduct, with no indication of any violations of his rights. 

2.  Therefore, since there is no evidence of error or injustice in his case, there appears to be no basis to grant his request to reinstate him to active duty for processing under the PDES.   

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)                                         AR20130002520





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ABCMR Record of Proceedings (cont)                                         AR20130002520



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