IN THE CASE OF

		BOARD DATE:	    30 July 2014

		DOCKET NUMBER:  AR20130019663 


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, correction of his records, including the authority, narrative reason, separation program designator (SPD) code, and reentry eligibility (RE) code of his administrative discharge, to show that he was discharged based on a medical finding of being physically unfit for active duty and an upgrade of the characterization of his service to honorable.

2.  The applicant states that he submitted a DD Form 149 (Application for Correction of Military Record under the Provisions of Title, United States Code, Section 1552 [10 USC 1552]) to request a change to his military service records. However, the Army Board for Correction of Military Records (ABCMR) did not adjudicate his case; his application was improperly reviewed by the Army Discharge Review Board (ADRB) and denied.  Therefore, the ADRB decision should be declared invalid and the ABCMR should act on his request as the initial arbiter.  In the alternative, he requests appeal of the ADRB decision.

   a.  He states the ABCMR is required by statute to review all applications that are properly before the Board to determine the existence of error or injustice and to correct those military records.  He notes that ABCMR guidelines state, "If you have not first applied [for relief] to the appropriate administrative process, the ABCMR will return your application to you without action."

   b.  Although the ADRB was the appropriate board to receive his application, it should have been returned to him without action; it should not have been sent to the ADRB.  By not returning the application to him, the Army Review Boards Agency (ARBA) violated Department of Defense and Department of the Army regulations.  He notes that when an agency fails to follow its own regulations, grounds for judicial review exist in accordance with Accardi v. Shaughnessy, 
347 US 260 (1954).

   c.  He adds that the DD Form 149 he submitted on 17 March 2012 shows he requested his records be changed to reflect he was medically separated because he was wrongfully denied the opportunity to be declared physically unfit for active duty.  Because this required a change to his military records, it follows that the ABCMR "is the exclusive forum to adjudicate [his] claim."
   
   d.  He states his record prior to 2010 illustrates a Soldier who embraced the Army way of life.  In fact, counseling session records show he was held in high regard as late as September 2009.
   
   e.  He states his acts of indiscipline began after his return from Iraq.  On
31 January 2010, he engaged in an altercation with a fellow Soldier in a nightclub.  After an incident in May 2010, an investigation and subsequent admission by the applicant revealed that he distributed a controlled substance to a fellow Soldier.  He received nonjudicial punishment (NJP) for both infractions.

   f.  He was involved in other disciplinary actions such as malingering, failure to report for duty on time, failure to respect the chain of command, failure to inform officers of incidents involving fellow Soldiers, and losing a security-sensitive identification card.  On 7 September 2010, separation proceedings were initiated against him for misconduct based on commission of a serious offense.

   g.  He states he first exhibited symptoms of Post-Traumatic Stress Disorder (PTSD) upon return from deployment in Iraq to his permanent duty station in Schweinfurt, Germany.  On 18 February 2010, a month after his return from Iraq, he visited Captain (CPT) Diana M. C----, a social worker at the Army Health Clinic, Schweinfurt, Germany.  CPT C----'s notes show the applicant "admits the anger problem began after this last deployment to Iraq in 2008-2009 when he was stationed in the JSS [Joint Services Support] and was checking people at the border and also one of his friends was mortared, but lived."  
CPT C---- referred the applicant to a psychiatrist, Doctor (Dr.) Esther M. G-------, for mental evaluation and treatment.  Dr. G------- diagnosed him with Adjustment Disorder with Anxious Mood, Attention-Deficit Hyperactivity Disorder (ADHD), and Primary Insomnia.  She prescribed medication to treat his insomnia and he continued treatment for Adjustment Disorder and Anxious Mood by attending counseling sessions.  However, his condition continued to deteriorate.  On 
28 October 2010, Dr. Robert C---, a psychiatrist, diagnosed him with Adjustment Disorder with Anxiety and Depressed Mood.

   h.  On 7 October 2010, he was issued a temporary physical profile due to a back injury.  He was then issued a permanent profile based on degenerative disc disease of his lower back and lumbago, which rendered him unfit for duty.  He asserts that he was being considered for a Medical Evaluation Board (MEB) at the same time he was being considered for administrative separation due to misconduct.

   i.  He states the reason for the change in his behavior can be attributed to an undiagnosed, deteriorating mental condition while on active duty (i.e., PTSD, a condition for which he did not receive adequate medical treatment).  He notes that despite a medical record indicating the presence of PTSD, he was never diagnosed with PTSD because a diagnosis would have entitled him to mental health resources that could make him a liability to the Army.  He asserts that a PTSD diagnosis would have restrained the Army's ability to administratively separate him.

   j.  He states that the U.S. Army Medical Command (MEDCOM) policy memorandum, issued on 19 May 2008, outlines the Army's policy under Army Regulation 40-501 (Standards of Medical Fitness) for screening a Soldier for undiagnosed PTSD and mild Traumatic Brain Injury (mTBI).  It requires a Soldier being considered for administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12 (patterns of misconduct), be screened for both PTSD and mTBI prior to discharge.

   k.  He states he was not evaluated for PTSD or mTBI.  In fact, a Report of Behavioral Health Evaluation, prepared on 29 September 2010, only mentioned that "there is no documentation of PTSD or mTBI in [applicant's] record."  Had he been properly screened, it would have been discovered that his substandard military performance was an outward manifestation of PTSD.  He adds that 
Dr. G------- failed to properly disclose the diagnosis of Adjustment Disorder with Anxious Mood that she had diagnosed and documented in his medical records in February 2010.  However, on 23 November 2010, she did add a provider's note related to follow-up mental health treatment for his Adjustment Disorder with Anxious Mood diagnosis.

   l.  He states his separation physical examination contradicts his mental health status at the time of his separation processing.  On 28 September 2010, he noted on his Report of Medical History that he was "being seen and followed by mental health."  However, the Report of Medical Examination indicates his psychiatric evaluation was "normal."  He opines that the primary care provider (PCM) would not be the appropriate medical provider to assess his psychiatric condition as he was then under psychiatric care by the mental health department.

   m.  He states he was discharged on 7 January 2011 under honorable conditions based on commission of a serious offense.

   n.  On 26 January 2011, he was evaluated by Dr. Lacie S. C-------, a psychiatrist at the Beaumont Department of Veterans Affairs (VA) Clinic.  He was diagnosed with ADHD, Anxiety Disorder, Depression, and PTSD.  By 11 March 2011, he was diagnosed with 10 of 13 identifiable PTSD symptoms.  He enrolled in the PTSD treatment program administered by the Beaumont VA Clinic and the Jefferson County Veterans Center.

   o.  The applicant states that the standard for error requires "substantial doubt" that the discharge would have remained the same if the error had not been made.  He asserts that, if Dr. G------- had noted that he was not psychiatrically cleared for any administrative action, his discharge would not have remained the same; he would not have been administratively separated.  Instead, he would have been medically separated based on failing to meet medical retention standards.

 3.  The applicant provides the following documents:

* Brief 1 - Brief in Support of Records Change or Discharge Upgrade
* Exhibit 1 - DD Form 149, 17 March 2012
* Exhibit 2 - ARBA letter, 30 March 2012
* Exhibit 3 - ADRB letter and case report, 25 October 2012
* Exhibit 4 - ARBA, ABCMR Applicant's Guide
* Exhibit 5 - Edward J. Shaughnessy v. United States, 23 May 1955
* Exhibit 6 - Allocating Power within Agencies (The Yale Law Journal)
* Brief 2 - Brief in Support of Discharge Upgrade
* Exhibit A - VA Medical Record Progress Notes (2011)
* Exhibit B - Jefferson County Veterans Center letter, 12 May 2011
* Exhibit C - SF (Standard Form) 600 (Chronological Record of Medical 
   Care), 18 February 2010
* Exhibit D - SF 600, 19 February 2010
* Exhibit E - SF 600, 28 October 2010
* Exhibit F - DA Form 4856 (Developmental Counseling Form), 1 May 2009
* Exhibit G - DA Form 4856, 1 July 2009
* Exhibit H - DA Form 4856, 30 September 2009
* Exhibit I - MEDCOM, Policy Memorandum 08-018, 19 May 2008
* Exhibit J - MEDCOM Form 4038 (Report of Behavioral Health Evaluation)
* Exhibit K - SF 600, 23 November 2010
* Exhibit L - DD Form 2807-1 (Report of Medical History), 19 October 2010
* Exhibit M - DD Form 2808 (Report of Medical Examination), 20 Oct  2010
* Exhibit N - DA Form 4856, 28 July 2010
* Exhibit O - three letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 April 2008 for a period of 3 years and 17 weeks.  He was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

2.  He served in Iraq from 1 December 2008 to 17 November 2009.

3.  A review of the applicant's Official Military Personnel File maintained in the interactive Personnel Electronic Records Management System:

* failed to reveal any evidence that he was referred to an MOS/Medical Review Board (MMRB), MEB, or Physical Evaluation Board (PEB) 
* failed to reveal any evidence that shows the applicant was found physically or medically unfit for continued service on active duty
* failed to reveal a copy of the applicant's administrative separation packet

4.  A DD Form 214 (Certificate of Discharge or Release from Active Duty) shows the applicant was discharged under honorable conditions on 7 January 2011 under the provisions of Army Regulation 635-200,  paragraph 14-12c, based on misconduct (serious offense). He completed 2 years and 9 months of net active service during this period.  It also shows in:
	
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):

* National Defense Service Medal
* Global War on Terrorism Service Medal 
* Iraq Campaign Medal with two bronze service stars
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)

* item 26 (Separation Code):  "JKQ"
* item 27 (Reentry Code):  "3"

5.  On 17 March 2012, the applicant submitted a DD Form 149.  He requested the narrative reason, separation code, and reentry code for his administrative discharge be changed to reflect information commensurate with a medical discharge and an upgrade of the characterization of his discharge to honorable.  He provided the following documents:  his DD Form 214, Attorney's Summary Brief (7 pages), Veterans Legal Assistant Project (25 pages), Texas Legal Service Center (94 pages), medical records (79 pages) and progress notes
(65 pages), and congressional inquiry (30 pages).

   a.  On 30 March 2012, the Chief, Case Management Division (CMD), ARBA, notified the applicant that his application had been assigned a case number.

   b.  On 26 April 2012, the applicant sought assistance with his case from the Honorable Ted P--, Representative in Congress.  

   c.  On 26 April 2012, the Honorable Ted P-- forwarded to ARBA information from the applicant and added "I would appreciate a final written copy of your correspondence…as soon as this matter is resolved."

   d.  On 7 May 2012, the Chief, CMD, ARBA, notified the Honorable Ted P-- that ARBA has oversight responsibility for the ADRB and ABCMR.  He was also informed that the applicant's case was pending review by the staff of the ADRB before presentation to the Board.

   e.  On 17 October 2012, the ADRB found that the authority, narrative reason, SPD code, and RE code pertaining to the applicant's administrative discharge were administratively correct.  It also found no mitigating factors that would merit an upgrade of the applicant's discharge.  Accordingly, the board determined that the discharge was both proper and equitable and voted to deny relief.

   f.  On 25 October 2012, the applicant, his counsel, and his congressman were notified of the results of the ADRB decision.

6.  In support of his application the applicant provides the following documents:

   a.  Beaumont VA Out-Patient Clinic, Progress Notes, covering the period 
26 January 2011 to 11 March 2011, that show he was evaluated by Dr. Lacie S. C-------, staff psychiatrist.

    	(1)  On 26 January 2011, he presented with 6 of 13 identifiable PTSD symptoms.  Her assessment of the applicant shows, in pertinent part, "ADHD by HX [History], Anxiety D/O [Disorder], NOS [Not Otherwise Specified], Depressive D/O NOS, R/O [Rule Out] PTSD, ETOH [Ethyl Alcohol] Abuse, Early Full Remission; Nicotine Dependence."
   
    	(2)  On 11 March 2011, he presented with 10 of 13 identifiable PTSD symptoms.  Her assessment of the applicant shows, in pertinent part, "ADHD by HX, Anxiety D/O, NOS, R/O GAD [Generalized Anxiety Disorder], Depressive D/O, NOS, PTSD; ETOH Abuse, Early Full Remission; Nicotine Dependence" and "Deferred, Obsessive Compulsive Traits."

   b.  Jefferson County Veterans Center, Beaumont, TX, letter, dated 12 May 2011, that shows Aleta J. F--, Licensed Clinical Social Worker (LCSW), noted the applicant initiated treatment on 10 March 2011 and presented with 12 symptoms consistent with the Diagnostic and Statistical Manual for Mental Disorders, 4th Edition, Text Revision (DSM-IV) TR criteria for PTSD.

   c.  An SF 600 that shows the applicant was seen by CPT Diana M. C----, LCSW, on 18 February 2010.  The applicant was diagnosed with Adjustment Disorder with Anxious Mood, ADHD, and Primary Insomnia.  She recommended referral of the applicant to psychiatry for medication assessment.

   d.  An SF 600 that shows the applicant was seen by Dr. Esther M. G-------, staff psychiatrist, on 19 February 2010.  The applicant was diagnosed with Adjustment Disorder with Anxious Mood, ADHD, and Primary Insomnia.  She recommended follow-up with PCM and/or staff psychiatry, as needed.
 
   e.  An SF 600 that shows the applicant was seen by Dr. Robert C---, Licensed Clinical Psychologist, on 28 October 2010.  The applicant was diagnosed with Adjustment Disorder with Anxious Mood.  He recommended follow-up with PCM and/or staff psychiatry, as needed.
 
   f.  Three DA Forms 4856, dated 1 May, 1 July, and 30 September 2009, that show the applicant was counseled by three different team leaders who all commented on his positive behavior and development while serving in Iraq.

   g.  MEDCOM, Fort Sam Houston, TX, Policy Memorandum 08-018, dated
19 May 2008, subject:  Screening for PTSD and mTBI Prior to Administrative Separations.  It shows, in pertinent part, that medical treatment facilities (MTF) will ensure Soldiers being considered for administrative separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12, based on a pattern of misconduct, are screened for PTSD and mTBI during routine mental health evaluations for administrative separations.  The policy memorandum also identified screening tools that can assist the clinician during the assessment.

   h.  MEDCOM Form 4038 that shows, on 29 September 2010, Dr. Esther M. G-------, staff psychiatrist, provided a Behavioral Health Evaluation pertaining to the applicant based on administrative separation proceedings (misconduct).  The applicant was diagnosed with ADHD in accordance with DSM-IV (and low back pain).  In the "Fitness for Duty and Continued Service" section the psychiatrist placed an "X" in the box for "Psychiatrically cleared for any administrative action deemed appropriate by command" (emphasis added).  She remarked, "Soldier has Attention Deficit disorder for which he is being treated.  This diagnosis does not affect his ability to comprehend and participate appropriately in chapter proceedings.  He has been deployed, there is no documentation of PTSD or mTBI in the record."

   i.  An SF 600 that shows the applicant was seen by Dr. Esther M. G-------, staff psychiatrist, on 23 November 2010.  The applicant was diagnosed with Adjustment Disorder with Anxious Mood.  She recommended follow-up with PCM and/or staff psychiatry, as needed.

   j.  A DD Form 2807-1, completed by the applicant on 19 October 2010, that shows he reported that he was "being seen and followed by mental health."

   k.  A DD Form 2808, completed by CPT Paul A. S-----, physician's assistant, on 20 October 2010, to document the applicant's separation physical.  Item 40 (Psychiatric - Specify any personality deviation) shows an entry in the "Normal" column.  The document does not indicate any "unfitting" medical conditions.
   
   l.  A DA Form 4856, dated 28 July 2010, that shows the applicant was counseled by his team leader who noted he had numerous issues that were unbecoming a Soldier.  He stated the applicant was unable to comply with the seven Army Values, he had been implicated in a Soldier's violation of his restriction, and he had been questioned about his role in the distribution of a controlled substance.

   m.  Three letters written by three former Soldiers (Mr. (then Private First Class (PFC)) Patrick P. J---- on 26 February 2012; Mr. Angel A-------- on 31 January 2012, and Mr. Phillip R----- on 6 January 2012.  They all describe an incident in Iraq that occurred in January 2009.  It involved a HMMWV (Humvee) in their patrol that was struck by an Explosive Formed Penetrator/Improvised Explosive Device (EFP/IED).  They state the applicant called for medical evacuation of the wounded Soldiers while PFC J---- assisted the battery commander with the search of the vehicle for sensitive items.  

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 4 (Procedures), section I (Eligibility for Disability Evaluation), paragraph 4-3 (Enlisted Soldiers subject to administrative separation), provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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

	a.  Chapter 1 (General), section VI (Medical Processing), paragraph 1-33 (Disposition through Medical Channels) provides that when the MTF commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention (Army Regulation 40-501, chapter 3), the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's General Court-Martial Convening Authority (GCMCA).

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.

		(1)  The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for
Courts-Martial.

		(2)  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction or higher authority, unless authority is delegated.

	c.  Chapter 3, 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.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.

	a.  It identifies SPD code "JKQ" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (serious offense).

	b.  The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JKQ."

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides the regulatory guidance for RE codes.  Table 3-1 (U.S. Army RE codes) shows RE code "3" applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  The ARBA, ABCMR Applicant's Guide, paragraph 5 (You Must Exhaust Administrative Remedies Before You Apply to the ABMCR), states the ABCMR will consider your case only after you exhaust all other available administrative appeals or remedies.  If you have not first applied for relief through the appropriate administrative process, the ABCMR will return your application to you without action.

   a.  If you are requesting an upgrade of your discharge characterization or a change of reason for a discharge that occurred within the last 15 years, you must submit a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

   b.  If the ADRB denies your request or your discharge occurred more than
15 years ago, you can apply to the ABCMR on a DD Form 149 for consideration of upgrade of a discharge characterization or a change of a reason for discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the ADRB decision rendered in his case should be declared invalid and the ABCMR should act on his request as the initial arbiter. He also contends that his records should be corrected to show he was honorably discharged based on a medical finding of being physically unfit for active duty.

2.  The evidence of record shows the applicant submitted a DD Form 149 to ARBA on which he requested a change to the narrative reason (emphasis added), SPD and RE codes, and an upgrade of his administrative discharge.  Along with his request, he submitted a brief from his attorney and a large number of documents from legal assistance organizations, along with his military and VA medical records.

   a.  It is acknowledged that the applicant did not submit his application on a DD Form 293 and that the ABCMR did not return the application without action.

   b.  The evidence of record shows the applicant's congressman was advised that the staff of the ADRB (emphasis added) was reviewing the application. There is no evidence of any objection to this action at that time by the applicant or his congressman on behalf of the applicant.  In any event, it was determined that the ADRB was the appropriate board (vice the ABCMR) for review of his case.  Again, the application contained a large volume of documentation from which this determination could be made.  Thus, other than the fact that his application was not submitted on the appropriate form, the applicant and his attorney provided the basis for the request and provided a significant amount of evidence in support of the application.

   c.  ARBA policy provides for the exercise of common sense as to whether an application should be returned without action simply to have the applicant complete a different form and return it, or to afford the applicant timely and professional service, and to process his/her application to the appropriate board within ARBA with minimal delay.

   d.  The central issue regarding the applicant's request was a review of his records to determine the validity of his administrative discharge.  The ADRB had not previously reviewed his discharge and the applicant's request was submitted within 15 years of the date of his discharge.  Thus, the ADRB was the appropriate board to consider the applicant's initial application to ARBA.  While the applicant may disagree, the evidence of record does not support his contention that the ABCMR was the appropriate board to review his case at that time.  Therefore, there is no basis for the ABCMR to declare the ADRB decision invalid with respect to the applicant’s case.

3.  The evidence of record shows an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions (emphasis added).

4.  The evidence of record show that MEDCOM Policy Memorandum 08-018, dated 19 May 2008, applies to, in pertinent part, Soldiers being considered for administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct (emphasis added).

5.  The applicant was processed for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (serious offense) (emphasis added), which authorized a discharge under other than honorable conditions.  Thus, he was not entitled to referral for physical disability processing and the MEDCOM policy did not apply to his administrative separation processing.

   a.  In February 2010, the applicant was diagnosed with Adjustment Disorder with Anxious Mood, ADHD, and Primary Insomnia.

   b.  On 28 October 2010, the applicant was diagnosed with Adjustment Disorder with Anxious Mood.

   c.  On 29 September 2010, a staff psychiatrist, provided a Behavioral Health Evaluation pertaining to the applicant.  She confirmed the applicant's diagnosis of ADHD (and low back pain) and affirmed that he was "Psychiatrically cleared for any administrative action deemed appropriate by command."  She also noted that there was no documentation of PTSD or mTBI in the record.  
   
    	(1)  Thus, it may be concluded that the staff psychiatrist considered her findings and diagnoses of the applicant, along with information in the applicant's medical records provided by other medical officials who examined the applicant, to comply with MEDCOM policy.  This, despite the fact the applicant was not being processed for administrative separation based on a pattern of misconduct, but rather based on misconduct (commission of a serious offense).

    	(2)  Accordingly, on 20 October 2010, the physician assistant who conducted the applicant's separation physical examination had the benefit of relying on the staff psychiatrist's Behavioral Health Evaluation of the applicant in which she psychiatrically cleared him for administrative separation action.
   
    	(3)  On 23 November 2010, the staff psychiatrist confirmed the applicant's diagnosis of Adjustment Disorder with Anxious Mood.  

   d.  There is no evidence that shows the applicant was diagnosed with PTSD during the period of service under review.

   e.  There is no evidence of record that shows the applicant was referred for physical disability processing or that he was found physically unfit for active duty.

	f.  There is no evidence of record to show the applicant was unfit to perform his duties.

   g.  The applicant was discharged from the U.S. Army on 7 January 2011.

6.  On 26 January 2011, the applicant presented with 6 of 13 identifiable PTSD symptoms.  On 10 March 2011, he presented with 12 of 13 identifiable PTSD symptoms.  Then, on 11 March 2011, he presented with 10 of 13 identifiable PTSD symptoms.  At that time, more than 2 months after he was discharged from the Army, a diagnosis of PTSD was first made.

7.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has failed to overcome that presumption.  In the absence of evidence to the contrary, it is concluded that the applicant's discharge on 7 January 2011 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense) was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, the ADRB also determined that the type of discharge was both proper and equitable.

8.  Based on the evidence of record (i.e., the applicant's own admission that he engaged in an altercation with a fellow Soldier, and that an investigation and subsequent admission by the applicant that he distributed a controlled substance to a fellow Soldier; misconduct for which he received NJP) his record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

9.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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.

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ABCMR Record of Proceedings (cont)                                         AR20130019663



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