IN THE CASE OF:	

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130021612 


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 reconsideration of his earlier request for an upgrade of his U.S. Army Reserve (USAR) discharge.  He also requests correction of his records to show he received a medical discharge. 

2.  The applicant states:

	a.  He was involuntarily separated without cause even though the Secretary of the Army approved Selective Continuation (SELCON) in 2010 for him to continue serving in the USAR.  He also wrongfully received an under honorable conditions (general) discharge even though he is an officer and records reflect that he earned all good officer evaluation reports (OERs) since serving in the USAR from 18 October 2006 to 26 April 2012.  He has no record of non-judicial punishment (NJP) or Article 15s or civilian criminal record.  He also has an excellent civilian career and public service record.  He further received an honorable discharge from his period of active duty Regular Army service as an officer for over 7 years from 14 May 1999 to 17 October 2006; received an honorable discharge from his period of Army National Guard (ARNG) service as an enlisted Soldier for 7 years from 12 May 1992 to 14 May 1999; and has accomplished outstanding civilian education and training programs in Law Enforcement, Intelligence, Investigations and National Security programs.  

	b.  Additionally, he volunteered to serve in the USAR while having no further military service obligation (MSO) remaining after receiving an honorable discharge on 17 October 2006, and while attempting to recover from injuries sustained as a result of service and combat in Iraq for which he is now rated at 80 percent (%) by the Department of Veterans Affairs (VA).  The injuries include traumatic brain injury (TBI) and a multitude of other injuries and he is currently being further evaluated for post-traumatic stress disorder (PTSD) and military sexual trauma (MST) that occurred while he was on active duty, for which the Regular Army and USAR leaders failed to act on reports by him about issues related to TBI, MST and PTSD.   

	c.  He was never referred for medical evaluation or a physical disability board review prior to being discharged from the Regular Army in 2006 or from the USAR in 2012, even though he was rated at 30%, 40%, 50%, 70%, and 80% while serving in the USAR.  Furthermore, he received no counseling statements that his performance was unacceptable while in the USAR and actually this was quite the contrary, because he received good OERs during his service in the USAR for each of his 6 years of "voluntary" service in the USAR.

	d.  He believes the USAR committed an administrative error and/or an injustice by wrongfully issuing a general instead of an honorable discharge to an officer who served voluntarily for an additional 6 years after receiving an honorable discharge from active duty and while still wounded and suffering from lifelong injuries sustained in service and combat, and from the trauma of being sexually harassed - sexually assaulted and physically assaulted while in the Regular Army.  He further feels that some leaders of the USAR may have conspired to tarnish his record by assigning him a general discharge from the USAR in an attempt to discredit him should information arise about abuses he sustained from senior officers while serving on active duty.  Lastly, when compared to all other officers with similar good OERs, no record of NJP, no civilian criminal record, and excellent training and certification records he believes that he should be issued an honorable discharge from the USAR which would be equitable and just when compared with officers of a similar grade and record throughout the history of the USAR.  When comparing his prior military service record where he received two previous honorable discharges, and when reviewing his excellent civilian service career with the Federal Government for which he received numerous awards for performance and excellence while serving in the USAR at the same time, this action by the USAR simply doesn't add up.  It gives the impression that there is a level of corruption or influence of toxic leadership within the USAR that needs to be examined.

3.  The applicant provides Congressional correspondence and the following previously-considered/submitted documents:

* SELCON on the Reserve Active Status List 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) 
* Résumé and Professional Biography 
* OERs from October 2006 to August 2011 
* DA Form 4856 (Developmental Counseling Form) 
* Extract of his VA rating decision 
* Standard Form 50 (Notification of Personnel Action) 
* Multiple post-service Disability Services Accommodation Report  
* VA correspondence - previously considered 
* Army Training Transcript - previously considered
* Verification of Military Experience and Training 
* Multiple prior or post-service certificates of training, achievement, appreciation, and/or completion 
* Leave and Earnings Statement 

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 AR20130003507, on 17 October 2013. 

2.  The applicant provides a new argument.  This is considered new evidence and as such warrants consideration by the Board. 

3.  The applicant enlisted in the ARNG on 12 May 1992 and he held an armor military occupational specialty.  He was honorably discharged from the ARNG on 13 May 1999 to accept an appointment. 

4.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 14 May 1999.  He entered active duty on that date and successfully completed the Air Defense Artillery Officer Basic Course. 

5.  He served in a variety of stateside or overseas assignments, including Iraq, and he was promoted to captain (CPT) on 1 October 2002. 

6.  He was honorably discharged on 17 October 2006 (unqualified resignation) and he accepted a USAR appointment with assignment to a troop program unit.  His DD Form 214 shows he completed 7 years, 5 months, and 4 days of active service. 

7.  While in the USAR, he served as a military intelligence (MI) officer of various TPUs, including the 345th MI Battalion and Detachment 1 of the 3300th Strategic Intelligence Group.

8.  On 1 October 2010, Headquarters, USAR Command (USARC) notified him that he was considered for promotion to major by the Fiscal Year 2010 Reserve Component (RC) promotion selection board (PSB) but he was not selected.  However, although the PSB did not select him the SELCON board recommended his continuation in the USAR. 

9.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain:  

	a.  A memorandum, signed by the Commanding General, U.S. Army Human Resources Command (HRC), on 27 March 2012, indicating that a Field Board of Inquiry held on 19 October 2010 recommended his separation from the USAR.  The findings and recommendations of the board were approved.  He would be issued a general, under honorable conditions discharge from the USAR effective 30 days of the date of this notification. 

	b.  On 30 March 2012, HRC published Orders D-03-204971 ordering his discharge from the USAR effective 26 April 2012 in accordance with Army Regulation 135-175 (Separation of Officers) with an under honorable conditions (general) characterization of service. 

10.  On 10 January 2013, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As a result, the ADRB voted unanimously to deny him relief for an upgrade of his discharge. 

11.  On 17 October 2013, the ABCMR reviewed his discharge but found no probable error or injustice.  As a result, the ABCMR also voted unanimously to deny him relief for an upgrade of his discharge. 

12.  His complete service medical records are not available for review with this case.  His available records do not contain:

* a permanent physical profile
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his military specialty, grade, or that he was unfit
* a medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)

13.  Most of what he provides with his current application is either filed in his official military personnel file (such as his OERs) or was previously considered with his original application to the Board.  He provides: 

	a.  His Résumé and Professional Biography, OERs from October 2006 to August 2011, verification of military training, and DA Form 4856.

	b.  Multiple prior or post-service certificates of training, achievement, appreciation, and/or completion, related to military intelligence, counter-intelligence, and/or counter terrorism. 

	c.  Undated VA rating decision confirming his receipt of service-connected disability compensation for migraines, asthma, TBI, tinnitus, right shoulder scar, left shoulder rotator cuff, left shoulder scar, and left knee laceration scar. 

	d.  Standard Form 50 dated 4 April 2013 showing he resigned from his civilian job at the Defense Intelligence Agency for health reasons.

	e.  Post-service (March 2013) VA correspondence related to evaluation for significant medical issues. 

14.  Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  Retention of officers, substandard in performance of duty or conduct, deficient in character or otherwise unsuited for military service cannot be justified in time of peace or war. The same standards of efficiency and conduct apply to all officers, regardless of component.  There are many reasons wherein an officer may require involuntary separation.  Examples of these are substandard performance of duties, moral or professional dereliction, and/or in the interest of national security.  The regulation also states each officer discharged honorably or under honorable conditions will be furnished an appropriate discharge certificate.  The type of discharge certificate to be furnished will be based solely on the officer’s behavior and performance of duty during the current period of service.  The types of discharges are:

	a.  Honorable Discharge.  An honorable discharge is a separation from the Army with honor.  The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.

	b.   General Discharge.  A general discharge is a separation from the Army under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge.
15.  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 ABCMR will decide cases on the evidence of record; it is not an investigative body.  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.

16.  Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred into the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS (Military Occupational Specialty) Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by HRC

	c.  The PDES assessment process involves two distinct stages:  The medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

17.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Paragraph 3-3a provided that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.

18.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%.

19.  Title 38, USC, 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 higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.
DISCUSSION AND CONCLUSIONS:

1.  With respect to his characterization of service: 

	a.  The specific facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain a memorandum issued by the Commanding General, HRC, approving the findings of a board of inquiry that appears to have recommended his involuntary separation and the issuance of a general discharge, and a subsequent order executing the discharge.   

	b.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service. 

	c.  Notwithstanding his previous ARNG honorable discharge in 1999, honorable discharge from active duty in 2006, and post-service achievements, there is insufficient evidence to support upgrading his discharge. 

2.  With respect to the medical discharge: 

	a.  None of the applicant's medical records are available for review with this case.  In order to be separated or retired for disability, the Army has a process that begins with entry into the PDES.  Referral to the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  In the applicant's case, there is no evidence to show he had:

* a permanent physical profile
* a diagnosis that any medical condition failed retention standards
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his military specialty or grade
* a medical examination that warranted his entry into the PDES

	b.  It is unclear what condition the applicant believes rendered him unfit.  He claims TBI, PTSD, and MST but provides no medical documentation whatsoever to support such a serious contention.  Referral into the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.

	c.  He also appears to believe since the VA awarded him service-connected disability compensation for multiple conditions, the Army, in effect, should have done the same.  However, the Army and VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA for example may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	d.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.

	e.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

3.  There does not appear to be an error or an injustice in the applicant's case.  In view of the circumstances in this case, there is insufficient evidence to grant him 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 to amend the decision of the ABCMR set forth in Docket Number AR20130003507, dated 17 October 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)                                         AR20130021612



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ABCMR Record of Proceedings (cont)                                         AR20130021612



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