IN THE CASE OF:	 

		BOARD DATE:	    7 May 2014

		DOCKET NUMBER:  AR20130015361 


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:

The applicant defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, on behalf of the applicant, that his general, under honorable conditions discharge be upgraded to honorable.  Furthermore, he requests a personal appearance before the Board to present his case.

2.  Counsel states the applicant is making this request as a matter of equity, clemency, and as justice so requires.

	a.  Counsel states the applicant served honorably in the United States Army for about 4 years including two tours of duty in Iraq.  His awards included the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon, and the Combat Infantryman Badge.  Unfortunately, during his service he was inflicted with post-traumatic stress disorder (PTSD), an unseen injury all too common for those members returning home from a combat zone.

	b.  The applicant was diagnosed with adjustment disorder after his first tour of duty to Iraq.  He became overwhelmed when he learned of his second tour to Iraq.  He became suicidal.  He also suffered from physical illnesses during his second tour of duty.  His father, who is a physician, sent him several medications to address his physical condition.  However, by the time these medicines arrived, he was no longer ill.  With no way to properly dispose of the medicine, he kept it in his possession.  Later these medicines along with alcohol were discovered by the Army during a search of the applicant's room.  The applicant knew he was not allowed to consume alcohol and this made him fearful of being disciplined if he turned it in to his commander.

	c.  On 13 April 2010, the applicant was administratively discharged based on his possession of alcohol, drugs that were not prescribed to him, and possession of Tylenol with codeine.  Shortly before his discharge, he was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct.  He was treated for PTSD and bipolar disorder during his second tour of duty in Iraq.

	d.  On 5 October 2010, the Department of Veterans Affairs (VA) granted the applicant a service-connected disability rated at 30 percent disabling for PTSD and bipolar disorder effective 14 May 2010.  He was also granted 10 percent VA disability for a right ankle strain, left ankle strain, and low back strain.

	e.  Counsel argues that the applicant meets the criteria for medical retirement from the military.  A service member with less than 20 years of service is eligible for medical retirement if he or she is not fit for duty and the member has a disability rating of 30 percent or greater on the VA Schedule for Rating Disabilities (VASRD).  Additionally, the disability must be permanent and not the result of the member's misconduct.  It also must be the proximate result of his or her active duty or from injury that was incurred in the line of duty.

	f.  Counsel argues that the applicant's mental illness is relevant to his discharge because his mental state impaired his judgment.  PTSD did not suddenly happen.  Clearly, the military misdiagnosed or failed to diagnose the applicant.  The applicant should not be punished for lacking clear judgment when his lack of clarity resulted from a combat-related mental illness.

3.  Counsel provides:

* a copy of the Army Discharge Review Board (ADRB) Case Report and directive with cover letter, dated 27 January 2012
* a blank copy of DD Form 149 (Application for Correction of Military Record)
* a blank copy of DD Form 293 (Application for the Review of discharge from the Armed Forces of the United States)
* VA Rating Decision, dated 5 October 2010 (8 pages)
* Progress Notes dated from 25 June 2010 to 22 February 2012 (12 pages)
* A two-page statement from the applicant's father describing the medicines he sent to the applicant and their use, dated 8 March 2013
* Email communications between the applicant, his father, and his commander, dated between 16 and 25 September 2009 and 1 January 2010

CONSIDERATION OF EVIDENCE:

1.  On 27 April 2006, the applicant enlisted in the Regular Army and was subsequently awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

2.  Records show the applicant was assigned for duty in Iraq during the period 
7 April 2007 to 29 May 2008.  On 16 September 2009, he was again assigned for duty in Iraq.

3.  On 11 April 2010, the applicant accepted nonjudicial punishment (NJP) for the offenses listed below.  

* Failed to obey a lawful order by refusing to go to "JSS NWS"
* Violated General Order Number 1 by wrongful possession of alcohol
* Violated General Order Number 1 by wrongful possession of Azithrmycin, a prescription drug not prescribed to him
* Violated General Order Number 1 by wrongful possession of Guaifen/PSE, a prescription drug not prescribed to him
* Violated General Order Number 1 by wrongful possession of Cephalexin, a prescription drug not prescribed to him
* Violated General Order Number 1 by wrongful possession of Prednisone, a prescription drug not prescribed to him
* Violated Article 112a, Uniform Code of Military Justice (UCMJ), by wrongful possession of Tylendol with Codeine #3, a controlled substance

4.  A DD Form 2807-1 (Report of Medical History) dated 30 March 2010, describes the applicant as a 23-year old serviceman who has flat feet which was attributed to his feet, knees, and lower back pain due to prolonged running.  Also, he has frontal headaches that increase as the day goes on.  He says that water, coffee and sugar, and Motrin provide relief.  Otherwise, he feels physically well but does admit to PTSD, seeing a counselor, and attempting to overdose while in theater.  He listed is as having the following:

* Worn contact lenses or glasses
* Recurrent back pain or any back problem
* Foot trouble
* Swollen or painful joints
* Knee trouble
* Need to use corrective devices such as back brace

5.  A Medical Command Form 4038 (Report of Behavioral Health Evaluation) dated 9 April 2010, indicates that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible.  He was diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct.

6.  A DD Form 2808 (Report of Medical Examination) dated 11 April 2010, indicates that the applicant was cleared for administrative action by the psychiatrist.  His significant defects included PTSD, flat feet, headaches, and suicide attempt.

7.  On or about 13 April 2010, the commander notified the applicant of his intention to separate him from the military due to the commission of a serious offense.  The commander stated his reason for this action was the applicant's wrongful possession of the drugs discussed above.  The commander stated he was recommending a general under honorable conditions characterization of service.

8.  On 13 April 2010, the applicant consulted with counsel concerning his rights.  He elected to not submit statements in his own behalf.  He requested consulting counsel and representation by military and/or civilian counsel at no expense to the government.

9.  The applicant’s commander recommended the applicant be separated from the service as discussed above based on his commission of a serious offense.  

10.  The appropriate authority approved the recommendation for discharge and directed that the applicant be given a general, under honorable conditions discharge.

11.  Accordingly, on 13 May 2010, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, due to the commission of a serious offense with a general discharge.  He completed 4 years and 17 days of creditable active duty service.

12.  On 9 December 2011, the ADRB considered the applicant's request for an upgrade of his discharge.  The applicant argued/implied that he suffered from PTSD while on active duty.  The applicant did not provide any independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated his misconduct and poor duty performance.  The ADRB found no mitigating factors which would merit an upgrade of the applicant's characterization.  The ADRB determined that his discharge was proper and equitable and denied his request.

13.  The applicant's service medical records were not available for review.

14.  Counsel provides the VA Progress Notes dated from 25 June 2010 through 22 February 2012.  In summary, these notes state:

	a.  25 June 2010: The applicant was initially diagnosed in 2007 and 2008 with depression and then later as bipolar.

	b.  26 August 2010: The applicant reports and medical records indicate that he was diagnosed with and treated for PTSD while in Iraq.

	c.  5 December 2011: The applicant  had an established diagnosis of PTSD secondary to trauma experienced in Iraq on two tours of duty.  He saw his friend lose a leg during the first 3 months of his first tour.  During his second tour, he witnessed a mass grave that contained females and children who had been executed.  He reported flashbacks of those, though less frequent than a year earlier.

	d.  22 February 2012: Still diagnosed with PTSD.  Reported he was managing his PTSD fairly well.

15.  The VA rating decision, dated 5 October 2010, as provided by counsel, states the applicant was granted service connection for the following medical conditions:

	a.  PTSD, also claimed as bipolar disorder, rated at 30 percent disabling effective 14 May 2010;

	b.  Right and left ankle strains, each rated at 10 percent disabling effective    14 May 2010;

	c.  Low back strain rated at 10 percent disabling effective 14 May 2010;

	d.  Bilateral pes planus rated at zero percent disabling effective 14 May 2010; and

	e.  Right and left foot hammertoe of the first toe on each foot, rated at zero percent disabling.

16.  In a 2-page statement, dated 8 March 2013, an individual purporting to be a physician, and having the same last name as the applicant, essentially stated he prescribed to the applicant the medications that were subsequently found in his room in Iraq that resulted in his NJP.  The physician described each medication and its use and noted that none of them had any potential for abuse.  He further stated that none of these medications are illicit drugs as alleged.

17.  Email communications between the applicant, his father who is a physician, and the unit commander, dated in September 2009 and on 1 January 2010 provide the following summarized comments:

	a.  From the applicant's commander on 16 September 2009: "I'm your son's commander and I know how hard the stop loss was on him.  I just wanted to let you know that he's doing great over here and continues to be a highly disciplined, positive, and reliable young soldier.  I will continue to keep an eye on him as we journey through this all together."

	b.  From the applicant's commander on 18 September 2009: "My first sergeant and I spent a couple hours with [applicant's name] yesterday after receiving word from his squad leader about this email and the disturbing things he said.  When we talked with him, he was calm and told us honestly that he is just plain pissed off about stop loss and hates Kuwait, and was acting out in a moment of emotion.  We spoke at length about the future, for all of us, and the challenge this period of waiting brings.  He laughed and lit up when talking about paragliding, skydiving, going to college, etc.  I don't blame him for being angry, but assured him that in life, just as in paragliding, you have to climb the mountain to enjoy the rewards.  Right now he's climbing.  He is doing OK and assured me that he will not hurt himself or others and that he was just acting out.  Nevertheless, I'm concerned for him, as I can only imagine you are.  We have referred him to the Brigade psychologist here at Buering and the chaplain as well.  Be confident in the knowledge that both of these individuals are highly trained and will make an honest assessment about the present condition he is in and the prospects for the future.  I will take any and all recommendations seriously from them.  I take his threats seriously.  He has asked for help and he will get it.  I guarantee you that.  He has a caring and attentive chain of command who will not allow him to suffer in silence."

	c.  From the applicant to his father on 1 January 2010: "I don't even know why I despise the Army so much.  I think it’s the thought that I wanted to get out, planned on getting out, had plans to get out, and now I'm frozen in time.  It might have been last deployment I showed my roommate the photos of the dudes we killed.  He cared less.  I asked him why and he said that isn't a part of my life, it was a part of yours, you knew what happened.  I'm just looking at photos."  It made sense.  I feel like I'm just going to be left lost and confused when I get out.  The Army has stopped challenging me and I grew less interested in it.  Like a lot of things, if I lose interest in it, that's it, that's all.  I have all these people around me from different places and lived different lives, but none of them share the same ambitions to do something, or to be something.  I don't understand why they don't have goals or have a life dream.  I have formed a dream of what I would like to do and I figure laws of attraction that I will manifest them."

18.  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 the commission of a serious offense that could result in a punitive discharge.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends, on behalf of the applicant that his general, under honorable conditions discharge should be upgraded to honorable

2.  Counsel requests a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  If the applicant/counsel is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board.

3.  The record shows the applicant accepted NJP for refusing to obey a lawful order, for violating General Order 1 by wrongfully possessing alcohol and medicines that were not properly prescribed to him; and, violation of Article 112a of the UCMJ for possession of a controlled substance.  Clearly, this misconduct rose to the level of a serious incident that could have resulted in his being court-martialed and sentenced to confinement and/or a punitive discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

6.  The available evidence clearly explains how the applicant came to wrongfully possess prescription medicines but does not adequately explain or excuse his failure to properly dispose of it at the time he received it.

7.  The available evidence substantiates that the applicant was suffering from PTSD and that he was receiving treatment while still in the Iraqi theater.  However, the evidence does not sufficiently show that his failure to obey a lawful order or to inform his chain of command about the unauthorized alcohol and medicine he had received in the mail was also the result of his mental condition.

8.  Furthermore, the email communications between the applicant, his father, and his commander clearly show that his chain of command paid close attention to him and to his condition.  It is reasonable to believe that if there was any indication that his misconduct was the result of his mental condition, he would have received appropriate consideration.

9.  In view of the above, the applicant's request should be denied.

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)                                         AR20130015361





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ABCMR Record of Proceedings (cont)                                         AR20130015361



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