IN THE CASE OF:  

		BOARD DATE:  21 April 2015  	  

		DOCKET NUMBER:  AR20140013183 


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 deferred the nature of his request to counsel.

2.  The applicant did not make a statement.

3.  The applicant provided the following documentation:

* Exhibit 1: A Memorandum for Record from the investigating officer (IO), subject: Results of an Army Regulation (AR) 15-6 Investigation, dated 6 November 2010 (5 pages) 
* Exhibit 2: A Memorandum for Record (review of AR 15-6) from the battalion commander, dated 6 November 2010
* Exhibit 3: A Memorandum for Commander, subject: Separation Under AR 635-200, paragraph 14-12c, Misconduct, Commission of a Serious Offense, dated 14 March 2011
* Exhibit 4: A Memorandum for Record, subject: Letters of Recommendation, dated 13 March 2012 (4 pages)
* Exhibit 5: A Memorandum for Commander, subject: Separation Under AR 635-200, paragraph 14-12c, Misconduct, Commission of a Serious Offense, dated 16 March 2011
* Exhibit 6: A Memorandum for Record, subject: Erroneous Article 15, dated 23 March 2011
* Exhibit 7: A Memorandum for Commander, subject: Referral to Administrative Separation Board Pertaining to [Applicant], dated 29 April 2011
* Exhibit 8: A Memorandum for Commander, subject: Medical Evaluation Board (MEB) Proceedings, dated 23 March 2012
* Exhibit 9: A DA Form 200 (Transmittal Record), completed MEB findings, dated 23 March 2012 (13 pages)
* Exhibit 10: Letter from Army and Air Force Exchange Service, dishonored checks, dated 18 October 2010
* Exhibit 11: A Memorandum thru Commanders, subject: Disposition of Administrative Separation Action, dated 11 June 2012
* Exhibit 12: A Complaint of Wrongs from the applicant's counsel, dated      12 October 2012 (4 pages)
* Exhibit 13: DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 16 October 2012 with an Under Honorable Conditions (General) characterization of service
* Exhibit 14: DD Form 214 ending on 16 October 2012 with an Honorable characterization of service (member copies number 1 and 4)
* Exhibit 15: A letter from the U.S. Army Human Resources Command (HRC) to the applicant, subject: Transfer of Post 9/11 GI Bill Education Benefits (TEB), dated 20 May 2014
* Exhibit 16: A letter from the Department of Veterans Affairs (VA), Rating Decision for service connected compensation, dated 20 June 2014 (24 pages)
* Exhibit 17: Enlisted Record Brief (ERB), dated 29 June 2011
* Exhibit 18: Service Medical Records and VA Medical Records (approximately 77 pages)
* Exhibit 19: A letter from a VA staff psychologist, dated 12 July 2014
* Exhibit 20: A letter from HRC, subject: Army Combat-Related Special Compensation (CRSC), dated 2 July 2013

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records by showing:

	a.  he was retired due to a physical disability effective 16 October 2012;

	b.  his Post 9/11 GI Bill education benefits were transferred to his wife;

	c.  he was granted CRSC compensation;

	d.  he was retroactively promoted to staff sergeant (SSG), pay grade E-6; and

	e.  his separation information was corrected to reflect a medical retirement.

2.  Counsel states the facts of the case and refers to each of the 20 exhibits provided by the applicant.  Counsel's points of argument include:

	a.  the Secretary of the Army may correct any military record when it is necessary to correct an error or remove an injustice;

	b.  the Board begins its consideration with a presumption of administrative regularity;

	c.  the applicant in this case has been the victim of material injustice by the Army;

	d.  the applicant has served honorably as indicated by the decision rendered by the Army Discharge Review Board (ADRB);

	e.  the applicant served in the Army for 16 years, 5 months, and 19 days and completed combat tours in Iraq and Afghanistan;

	f.  the applicant received personal decorations, the Army Good Conduct Medal, and service medals and ribbons;

	g.  the applicant's wife was unjustly denied the use of his education benefits because he was flagged for separation following the events of November 2010 and not permitted to transfer his educational benefits;

	h.  the applicant was the victim of a material error of discretion by his chain of command concerning his suffering from post-traumatic stress disorder (PTSD) that is directly related to his combat service;

	i.  the applicant should have been promoted in December 2011 to SSG,E-6; and

	j.  the applicant qualifies for CRSC once he is retired due to medical disability based on his VA rating at 100 percent disabled.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 18 July 2007, the applicant entered the Regular Army as a prior service Soldier, in the rank of sergeant, pay grade E-5.

2.  The report of an AR 15-6 investigation dated 6 November 2010 (Exhibit 1), stated that the applicant had admitted to trying to charge his "IPOD" on a government computer at the National Training Center.  This constituted a violation of the NTC's Information Assurance Policy.  The IO recommended that the applicant be relieved of his duties as the noncommissioned officer (NCO) in charge of the battalion S-6 section and that he receive field grade nonjudicial punishment for this misconduct.  In a separate memorandum dated that same day, the battalion commander indicated his concurrence with the recommendation and intention to take such action against the applicant.

3.  In a memorandum dated 14 March 2011 (Exhibit 3), the applicant's commander initiated action to separate him under the provisions of AR 635-200, paragraph 14-12c for misconduct due to the commission of a serious offense.  He recommended that the applicant receive an honorable characterization of service.  On 16 March 2011, the brigade commander disapproved the recommendation.

4.  In a Memorandum for Record dated 23 March 2011 (Exhibit 6), the brigade legal NCO stated that assumption of command orders had expired resulting in the applicant's nonjudicial punishment not being completed by the imposing commander or by any succeeding commander.

5.  In a memorandum dated 29 April 2011 (Exhibit 7), the Commanding General, 1st Cavalry Division, appointed an administrative separation board to consider whether the applicant should be separated.

6.  A DA Form 3947 (MEB Proceedings) dated 21 February 2012 (Exhibit 9), reports that the applicant's medical condition was evaluated with the following diagnosis:

	a.  Obstructive sleep apnea that does not meet retention standards;

	b.  PTSD, chronic, severe that does not meet retention standards;

	c.  Glomerulonephritis type 2 that meets retention standards;

	d.  Hypertension that meets retention standards; and

	e.  Erectile dysfunction that meets retention standards.

7.  The MEB recommended the applicant's referral to a Physical Evaluation Board (PEB).  The findings and recommendation were approved on 2 March 2012.  The applicant concurred on 23 March 2012.
8.  In a memorandum dated 23 March 2012 (Exhibit 8), the PEB liaison officer stated that the MEB proceedings pertaining to the applicant had been placed on hold pending a review by the General Court-Martial Convening Authority (GCMCA) to determine whether the applicant should be administratively separated due to misconduct, or should continue with further processing through the Integrated Disability Evaluation System (IDES).

9.  In a memorandum dated 11 June 2012 (Exhibit 11), the GCMCA stated he had carefully reviewed the applicant's separation packet and the MEB proceedings.  He determined that the applicant's medical condition was not a direct or substantial contributing cause of the misconduct.  Further, he concluded other circumstances did not warrant disability processing.  Therefore, his case would not be further processed within medical disability channels.  The GCMCA directed that the applicant be discharged with an under honorable conditions, general characterization of service and that he not be transferred to the Individual Ready Reserve.

10.  A DD Form 214 (Exhibit 13) shows the applicant was administratively discharged on 16 October 2012, under the provisions of AR 635-200, paragraph 14-12c for misconduct, serious offense.  His service was characterized as Under Honorable Conditions (General).  He had completed a total of 15 years and 9 months of creditable active duty service.

11.  In a letter dated 2 July 2013 (Exhibit 20), the HRC informed the applicant that because he was not in a military retired status, he was not eligible to file a claim for CRSC or to receive such compensation.

12.  On 24 July 2013, the ADRB considered the applicant's request for an upgrade of his characterization of service to honorable.  On the basis of the applicant's length and quality of service, including his combat service, the ADRB determined that his discrediting service was sufficiently mitigated to warrant relief by upgrading his characterization of service to honorable.  However, the ADRB further determined that the reason and authority for his discharge was fully supported by the record and voted not to change it.

13.  In a memorandum dated 20 May 2014 (Exhibit 15), the HRC informed the applicant that the TEB Website did not indicate that he had requested to transfer his Post 9/11 education benefits prior to his separation.  Because he was negatively flagged effective 9 July 2011 and remained in this status until his involuntary separation on 16 October 2012, he was ineligible to transfer his education benefits.  Furthermore, because he was no longer on active duty or in the Selected Reserve, he continued to be ineligible to transfer these benefits.
14.  In a letter dated 20 June 2014 (Exhibit 16), the VA notified the applicant of its rating decision wherein he was granted a combined disability rating of 100 percent for the following conditions:

	a.  Psychiatric disorder to include PTSD and depressive disorder rated at 100 percent;

	b.  Hypertension rated at 20 percent; and 

	c.  Acute glomerulonephritis with hypertension rated at 80 percent.

15.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  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 MCM.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

16.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9 provides that the Board 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.

17.  Army Regulation 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation):

	a.  This regulation 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.

	b.  It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

	c.  It also provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

19.  Title 10, U.S. Code, 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% and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

20.  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 higher VA rating does not establish 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through his counsel, that his military records should be corrected by showing:

	a.  he was retired due to a physical disability effective 16 October 2012;

	b.  his Post 9/11 GI Bill education benefits were transferred to his wife;

	c.  he was granted CRSC compensation;

	d.  he was retroactively promoted to staff sergeant (SSG), pay grade E-6 effective December 2011; and

	e.  his separation information was corrected to reflect a medical retirement.

2.  The available evidence shows that the applicant had admitted to trying to charge his "IPOD" on a government computer.  Because this action was in violation of established policies, he was recommended for relief of duties and nonjudicial punishment.  Due to the expiration of orders showing proper and timely assumption of command, it appears that one or both of these recommendations may not have been processed to completion.  However, the failure to impose punishment does not negate the fact that the applicant had committed a serious offense which was the basis for convening an administrative separation board.

3.  The available evidence also shows that the applicant had been recommended for processing through the IDES and had been referred by the MEB for evaluation by the PEB.  However, the GCMCA put a hold on the MEB pending the outcome of an administrative separation board.  Upon review, the CG determined that the applicant's commission of a serious offense did not result from any of his medical conditions.  Accordingly, the CG directed that he not be further processed through the IDES and he be discharged due to misconduct.  There is no apparent error or injustice with this action.

4.  The available evidence shows that the applicant did not apply to transfer his Post 9/11 GI Bill education benefit prior to his being negatively flagged in 2010. He never became eligible to do so prior to his involuntary discharge.  Accordingly, he is not now entitled to do so.  There is no apparent error or injustice with this issue.

5.  The available evidence shows that the applicant is not eligible to claim or receive CRSC because he is not a military retiree.  There is no error or injustice concerning this issue.

6.  A review of the applicant's records failed to show he was ever recommended for promotion to SSG, E-6, or that he had met the promotion criteria at any time while in a promotable status.  Therefore, this portion of his request should be denied.



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)                                         AR20140013183





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013183



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1