BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20140003890 


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 a medical discharge.

2.  The applicant states, in effect:

   a.  He was being processed for a medical board; however, he was court-martialed, but he was not discharged as a result of the court-martial.  After his sentence/punishment he was not returned to his previous unit/duty station to complete his medical board.  During the medical board procedure a Soldier is not authorized a permanent change of station or discharge until the medical board findings are completed.  His was not completed.

   b.  He believes the error occurred because after his court-martial and completion of his sentence, at the Personnel Control Facility at Fort Sill, OK, they did not have his medical records to continue his medical board because the records were located at Fort Bliss, TX, where he should have been returned after completion of his sentence.  He should not have been discharged at Fort Sill, OK, for misconduct when he had already received punishment as a result of the court-martial for the same thing he was discharged for.  Two punishments for the same thing, and one taking place almost a year after his punishment was completed.

3.  The applicant provides no additional evidence.




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 August 2006.  He served in military occupational specialty 11B (infantryman).  He served in Iraq from 14 March 2008 through 15 March 2009.

2.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 
3 March 2011, reported him absent without leave (AWOL).  The applicant's company commander stated the applicant was fleeing in lieu of court-martial.

3.  On 6 March 2011, he was apprehended by civil authorities and was returned to military control.

4.  On 23 March 2011, he was convicted by a general court-martial of one specification of being AWOL from 15 March through 20 July 2010.  He was sentenced to confinement for 120 days, a forfeiture of all pay for 4 months, and reduction to pay grade E-1.  On 21 October 2011, the convening authority approved only so much of the general court-martial sentence of 23 March 2011 as provided for confinement, a forfeiture of pay, and reduction to pay grade E-1, and ordered it executed.

5.  On 24 March 2011, he was convicted by a special court-martial of two specifications of willfully disobeying a lawful order from a noncommissioned officer on 8 October 2010 and he was sentenced to confinement for 2 months.  
On 26 August 2011, the convening authority approved his sentence and ordered it executed.

6.  A Report of Mental Status Evaluation, dated 31 August 2011, shows he was suffering from post-traumatic stress disorder (PTSD) related to his combat service.  

7.  His record is void of the complete facts and circumstances pertaining to his discharge; however, his record contains the following:

   a.  A memorandum, dated 1 May 2012, subject:  An Administrative Separation Under Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 14, paragraph 14-12c, wherein the Garrison Commander approved the applicant's general discharge.  

   b.  A DD Form 214 showing, accordingly, on 4 May 2012 he was discharged for misconduct, with service characterized as (general) under honorable conditions, in pay grade E-1.  He was credited with completing 5 years and 
11 days of net active service and he had 260 days of lost time.
8.  On 1 May 2013, the Army Discharge Review Board denied his petition for an upgrade/change of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 14-12c – Soldiers will be separated for the commission of a serious offense to include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general discharge under honorable conditions, or an honorable discharge may be granted.

   b.  Paragraph14-17 - commanders will not take action to separate Soldiers for a medical condition solely to separate a Soldier who may have committed serious acts of misconduct.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  The regulation states:

	a.  The Physical Disability Evaluation System assessment process involves two distinct stages:  the Medical Evaluation Board (MEB) and Physical Evaluations Board (PEB).  The purpose of the MEB was to determine whether the service member's injury or illness was 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 was an administrative body possessing the authority to determine whether a service member was fit for duty.  A designation of "unfit for duty" was required before an individual can be separated from the military because of an injury or medical condition.

	b.  Service members who were determined to be unfit for duty due to disability are either separated from the military or were permanently retired depending on the severity of the disability and length of military service.  Individuals who were separated received a one-time severance payment while veterans who retired based upon disability received monthly military retirement payments and had access to all other benefits afforded to military retirees.


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

11.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-33 states the causes for referral to an MEB for anxiety (PTSD falls under anxiety disorder), somatoform, or dissociative disorders are (1)  persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (2)  persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (3)  persistence or recurrence of symptoms resulting in interference with effective military performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  His record is void of the facts and circumstances of his discharge; however, the available evidence shows he was convicted by a special and general court-martial for misconduct that involved different offenses.  As a result his company commander initiated action to discharge him, the separation authority approved his discharge, and he was discharged accordingly on 4 May 2012.

2.  It appears that based on his overall record it was directed that he receive a general discharge, as the characterization of this type of service is normally under other than honorable conditions.

3.  He provided no evidence or a convincing argument to show the reason for his discharge is erroneous or unjust.  There is no evidence and he did not provide sufficient evidence to show his PTSD or any other medical condition was medically unfitting (in accordance with the standards of Army Regulation 40-501). 

4.  Without evidence to the contrary, his administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  

5.  In view of the foregoing, there is insufficient evidence to support granting 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 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)                                         AR20140003890



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ABCMR Record of Proceedings (cont)                                         AR20140003890



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