IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130012583 


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, in effect, reconsideration of his request that his general discharge be upgraded to an honorable discharge by reason of permanent disability.

2.  The applicant states that his behavior on active duty was not properly diagnosed due to the lack of experience of the personnel involved as they lacked knowledge of post-traumatic stress disorder (PTSD) and major depressive disorders.  

3.  The applicant provides copies of his VA treatment records showing that he was granted service-connected disability for PTSD in 2013.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120012574, on 10 January 2013.

2.  The applicant enlisted in the Regular Army on 16 August 2005.  He completed his training as a water treatment specialist and was transferred to Korea. 

3.  On 23 October 2006, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b due to a pattern of misconduct.  He cited as the basis for his recommendation the applicant’s disobeying and being disrespectful toward both a commissioned and noncommissioned officer, failure to go to his place of duty on multiple occasions, and forging a sick slip.

4.  After consulting with counsel the applicant elected to submit a statement in his own behalf in which he stated that he should be chaptered out of the Army but he was not a bad Soldier.  However, he believed that he should be discharged for minor infractions.  He also stated that he realized he was not ready to be a Soldier at this time. 

5.  The appropriate authority approved the recommendation for discharge on     25 October 2006 and directed that he be discharged under honorable conditions with a general discharge.

6.  Accordingly, he was discharged under honorable conditions on 8 November 2006 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct (minor infractions).  He had served 2 years, 2 months, and 
23 days of active service.

7.  A review of the available records failed to show any indication that the applicant was deemed unfit to perform his duties or that he was not fit for separation or that he had been diagnosed with PTSD or any other condition.  

8.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and the ADRB denied his request on 10 June 2011.

9.  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 included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of an 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.  This regulation also provides, in pertinent part, 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.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s records contain no evidence that he was deemed physically unfit to perform the duties of his office, rank, grade or rating while on active duty or that he should have been processed for separation through the Physical Disability Evaluation System.    

4.  Although the applicant was subsequently diagnosed as having PTSD approximately 7 years after his discharge, there appears to be no evidence to show that the condition existed or was the cause of his repeated misconduct while on active duty.  

5.  Accordingly, there appears to be no basis to grant the applicant’s request to void his discharge and grant him a discharge due to physical disability.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120012574, dated 10 January 2013.



      _______ _   _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)                                         AR20130012583





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ABCMR Record of Proceedings (cont)                                         AR20130012583



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