IN THE CASE OF

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130020888 


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 medically retired.

2.  The applicant states, in effect, that he was not legally mentally cleared by Army doctors during the separation process and the separation board found that he should be medically retired.  The separation authority concluded that his misconduct was not the result of his mental and medical condition despite the fact that his doctor said it was due to his post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and depression.  He now knows after extensive treatment that his misconduct was due to his condition. 

3.  The applicant provides a one-page letter explaining his application, the approval of his separation by the separation authority, and 15 pages of chronological records of medical care that compose the Medical Evaluation Board (MEB) Narrative Summary (NARSUM).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 March 2003 for a period of    4 years and training as an infantryman.  He served two tours in Iraq during the periods 20040815 – 20050729 and 20071024 – 20081204 and was promoted to the pay grade of E-6 on 1 May 2008.

2.  On 10 January 2012, while assigned as an instructor at Fort Benning, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use of cocaine. 

3.  The complete facts and circumstances surrounding his administrative separation were not available for review.  However, the applicant provided a copy of the approval document which shows that on 14 February 2013 the separation authority determined that the applicant’s medical condition was not a direct or substantial cause of his misconduct as outlined in his separation packet and other circumstances in his case did not warrant disability processing instead of further processing for administrative separation.  He directed that the applicant be furnished an honorable discharge.

4.  Accordingly, he was honorably discharged on 12 March 2013 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) due to misconduct (Drug Abuse).  He had served 10 years and 8 days of active service. 

5.  The MEB NARSUM provided by the applicant shows that he was diagnosed as having the following unfitting/unacceptable conditions:

* PTSD
* Depressive Disorder -  Not Otherwise Specified (NOS)
* Post-concussion syndrome with cognitive disorder (NOS)
* Post-concussion syndrome with post-traumatic migraine headaches
* Post-concussion syndrome with disequilibrium
* Irritable bowel syndrome/Esophageal reflux/spasm
* L4, L5-S1 spondylosis with neuritic pain left lower extremity
* Left knee patellofemoral syndrome/Osteoarthritis with patellar enthesophyte with chronic left knee pain
* C5-6 spondylosis with neuritic pain right upper back/left neuroforminal narrowing at C5-6 facet hypertrophy at C6-7
* Bilateral foot plantar fascilitis/Bilateral Achilles tendonitis

6.  Army Regulation (AR) 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, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

7.  AR 635-200, Section VI (Medical Processing), paragraph 1-33 (Disposition through medical channels) states in paragraph 1-33a that except for separation action under chapter 10 and as is provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.

8.  AR 635-200, paragraph 1-33b provides that when the MTF commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 7 or 14 does not meet the medical fitness standards for retention (AR 40-501, chapter 3), he or she will refer the Soldier to an MEB in accordance with AR 40-400.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.  If the MEB findings indicate that referral to a PEB is warranted for disability processing under AR 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the PDES when action under the UCMJ has not been initiated and one of the following has been determined:   

* Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation
* Other circumstances of the individual case warrant disability processing instead of further processing for administrative processing.

9.  AR 635-200 states that the authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative provisions will not be delegated.

10.  AR 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 physical disability incurred or aggravated in service.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank or rating.


11.  AR 635-40 Section I (Eligibility for Disability Evaluation), paragraph 4-3 states 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.  It further states the GCMCA may abate the administrative separation if the Soldier’s medical condition is the cause or substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions.  The GCMCA must sign the decision and forward it with a copy of the disability case file to the PEB.  The authority cannot be delegated.  Section III (Medical Processing Related to Disability Evaluation) at paragraph 4-9 states the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

12.  AR 40-400 (Medical Services – Patient Administration) states in paragraph 7-5 that in cases involving separation under the provisions of AR 635-200 when it appears that a mental illness, medical condition, or physical defect is the direct cause of unfitness or unsuitability, that individuals will be processed under the PDES.  Referral into the PDES takes precedence over enlisted administrative separations except where the regulatory provisions authorize a discharge characterized as under other than honorable conditions. 

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered and it appears his contention that he should have been medically retired instead of being discharged lacks merit.

2.  Inasmuch as the applicant’s administrative separation packet is not available for review, it must be presumed that his administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

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

4.  In reviewing all of the available evidence, it appears that the applicant has failed to provide sufficient evidence to show that the separation authority erred when he determined that the applicant’s condition was NOT the cause of his misconduct.

5.  Therefore, absent evidence to the contrary, it must be presumed that the separation authority evaluated the applicant’s contentions and determined that further Physical Disability Evaluation System processing was not appropriate as he did not abate the separation process. 

6.  All Soldiers are held accountable for their misconduct and are afforded the opportunity to submit mitigating circumstances at the time they are held accountable.  In the applicant’s case, there is insufficient evidence to show that his medical condition was either the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation or that other circumstances warranted disability processing.   

7.  Accordingly, there appears to be no basis to grant his request for retirement by reason of 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 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)                                         AR20130020888





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ABCMR Record of Proceedings (cont)                                         AR20130020888



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