IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140010848 


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 general discharge be upgraded to a fully honorable discharge by reason of permanent disability or retirement and that his rank be restored to pay grade E-3/private first class (PFC).

2.  The applicant states he should have been processed for disability separation or retirement instead of being discharged for misconduct.  He states he witnessed numerous casualties while on patrol in Iraq and often suffered poor treatment by members of his unit to include physical assault. 

3.  The applicant provides copies of his military medical and personnel records and Department of Veterans Affairs (VA) Rating Decisions and treatment records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s general discharge be upgraded to a fully honorable discharge by reason of permanent disability or retirement and that his rank be restored to the pay grade of E-3/PFC.

2.  Counsel states, in effect, that the applicant was not properly processed for separation because he was discharged for misconduct and should have been processed through the Physical Disability Evaluation System (PDES) due to a 
bi-polar disorder diagnosis.  He continues by stating that Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-32b, provides that disposition through medical channels generally takes precedence over administrative processing and if a Soldier does not meet the medical fitness standards for retention he or she must be referred to a medical evaluation board (MEB).  He also states the psychologist found the applicant had poor judgment and fair impulse control with a psychiatric condition requiring medical treatment.  However, the psychologist did not find that he met the health retention requirements of Army Regulation 40-501 (Standard of Medical Fitness) or that he failed to meet medical retention standards, thereby failing to properly discharge his duties because the applicable regulation requires that when the attending medical officer determines that a Soldier being processed for administrative separation does not meet the medical fitness standards for retention, he or she will refer the Soldier to a MEB.  He further states that the applicant’s condition was so severe that the VA rated it as 70 percent disabling effective the day after his discharge.   

3.  Counsel provides an 11-page brief explaining his position and supporting documents tabbed as exhibits A – I.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was serving in the United States Army Reserve (USAR) as a wheel vehicle mechanic when he enlisted in the Regular Army on 29 December 2005 for a period of 3 years and 10 weeks and training as an infantryman.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Wainwright, Alaska for his first and only assignment.  He was advanced to the pay grade of E-3 on 1 June 2006.

3.  He deployed to Iraq with his unit during the period 23 April 2006 to 30 November 2006 where he was awarded the Combat Infantryman Badge.

4.  On 3 April 2007, nonjudicial punishment was imposed against the applicant by his battalion commander for wrongfully inhaling AIR DUSTER, an intoxicating substance.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of $650.00 pay per month for 2 months, extra duty for 45 days and restriction for 45 days.

5.  On 23 July 2007 the applicant was referred to the Community Mental Health Service for a mental status evaluation due to his being processed for administrative separation under the provisions of Army Regulation 635-200, chapter 14, following his wrongful use of inhalants on four separate occasions. The examining psychologist, a military officer, opined the applicant was mentally responsible; had a psychiatric condition requiring treatment; and he was not motivated to continue in military service.  He stated the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible.  He diagnosed the applicant as having the following conditions:

* AXIS I - Bi-Polar Disorder, most recent episode hypomanic
* AXIS II - No diagnosis on Axis II
* AXIS III - Noncontributory
* AXIS IV - Moderate – pending potential administrative separation, 
           occupational problems
* AXIS V - Global Assessment of Functioning (current) = 60; Moderate
           difficulty in social and occupational functioning

6.  The psychologist recommended treatment by the community health psychiatrist and cleared the applicant (psychiatrically) for any administrative actions deemed necessary by the command.  He also indicated that the applicant reported a history of extensive drug and alcohol use prior to Army service.  While in service, the applicant used inhalants on four separate occasions.  He went on to state the last two incidents were intentional attempts by the applicant to be separated from the service and noted the applicant verbalized a strong desire to be separated from the Army. 

7.  The applicant was seen by the community health psychiatrist up until the day before he began clearing and the psychiatrist changed his medication from Seroquel to Zyprexa (5mg).  Both are drugs used to treat bi-polar disorders.  

8.  On 8 August 2007, nonjudicial punishment was imposed against the applicant by his battalion commander for wrongfully inhaling AIR DUSTER, an intoxicating substance.  His punishment consisted of a forfeiture of $650.00 pay per month for 2 months, extra duty for 45 days and restriction for 45 days.

9.  On 20 September 2007, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct, commission of a serious offense.  He cited the applicant’s repeated incidents of using inhalants as the basis for his recommendation.

10.  On 10 October 2007, after consulting with defense counsel, the applicant elected not to submit a statement in his own behalf.

11.  On 15 October 2007, the appropriate authority approved the recommendation for discharge and directed that he be discharged under honorable conditions with a general discharge.

12.  Accordingly, he was discharged under honorable conditions on 29 October 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (serious offense).  He had served 1 year, 10 months and 29 days of active service.

13.  On 21 April 2009, the VA gave the applicant a combined disability rating of 70 percent for diagnosis of Bipolar Disorder, not otherwise specified, with alcohol and marijuana abuse (also claimed as depression) effective 30 October 2007.

14.  Army Regulation 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

16.  Army Regulation 40-400 (Medical Services – Patient Administration), paragraph 7-5, states that in cases involving separation under the provisions of Army Regulation 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 Army Physical Disability Evaluation System (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 (emphasis added). 

17.  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.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  After reviewing all of the facts and circumstances in this case, it appears that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

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

3.  The applicant’s contentions and supporting documents have been carefully considered and found to lack merit.  While the applicant was diagnosed as having a Bi-Polar Disorder while on active duty, there is no evidence to show that he was deemed physically unfit to perform the duties of his office, rank, grade or rating while on active duty or that he should have been processed for separation through the PDES. 
4.  Accordingly, there appears to be no basis to grant the applicant’s request to void his discharge and grant him a fully honorable discharge due to physical disability, especially given his repeated acts of misconduct.

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)                                         AR20140010848



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140010848



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1