BOARD DATE: 25 April 2017 DOCKET NUMBER: AR20160000302 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 April 2017 DOCKET NUMBER: AR20160000302 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 AR20140009347, dated 7 January 2015. ______________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. BOARD DATE: 25 April 2017 DOCKET NUMBER: AR20160000302 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 previous request for correction of his records to show he was medically retired vice administratively discharged. 2. The applicant states, in effect, he is providing a new argument and new evidence that were not previously considered. 3. The applicant provides: * orders, dated 19 August 2010 * DA Form 4856 (Developmental Counseling Form), dated 30 August 2011 * 19 pages of self-authored letters, dated between 30 August 2011 and 8 May 2012 * memorandum, dated 20 October 2011 * military duty roster, dated October 2011 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 15 November 2011 * two DA Forms 7279 (Equal Opportunity (EO) Complaint Form), dated 18 and 21 November 2011 * eight character statements to his MEB lawyer, dated 8 and 9 March 2012 * letter from his representative in Congress, dated 2 April 2012 * page 1 of an 18 page self-authored DA Form 2823 (Sworn Statement), dated 14 May 2012 * seven pages of medical records, dated between 23 July 2012 and 19 June 2015 * two pages titled "DOD Certified Drug Testing Laboratories" * one page titled "Did military rules cost a Soldier his life? 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 AR20140009347 on 7 January 2015. 2. As a new argument, the applicant states: a. He should have been medically retired not administratively discharged. He was told by the Division Sergeant Major (SGM) that he could speak to the general but it did not happen. He submitted formal documentation to speak with the general. He was also evaluated by Army medical personnel and found to have a mental disorder but they did not inform him; he found out from the Department of Veterans Affairs (VA) after he was discharged. b. His military record is unjust and in error due to his not receiving treatment for his mental state and adjustment/anxiety disorder. He was not given a medical retirement under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-33 (Disposition through Medical Channels), when the following has been determined: (a) The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination, (b) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. c. He was under both (a) and (b) [listed above] and did not receive proper mental medical care; instead he was tossed out. The cause of the error was that he was being harassed, mistreated, and forced to do jobs he should not have done against Army medical advice and this resulted in his self-medicating. His record does not accurately reflect the trauma he endured while serving in Headquarters and Headquarters Company (HHC), 1st Battalion (BN), 1st Brigade Special Troops Battalion (BSTB), Fort Riley, KS. 3. As new evidence, the applicant provides a memorandum, dated 20 October 2011, wherein the Chief, Behavioral Health Clinic, Fort Riley, stated he read the VA examination and agreed with the applicant's diagnosis of adjustment disorder with anxiety, chronic, moderate. His Global Assessment of Functioning (GAF) score reflected his symptoms were transient and expectable reactions to psychosocial stressors, in that there had been no more than slight impairment in social and occupational functioning (emphasis added). There was no psychiatric profile. 4. Having had prior active and Reserve service, the applicant enlisted in the Regular Army on 3 February 2009 in the rank of specialist (SPC)/E-4 and he held military occupational specialty (MOS) 91D (Power Generator Equipment Repairer). He was assigned to D Company, 1st BN, 1st BSTB, 1st Infantry Division, Fort Riley, KS. 5. On 27 January 2011, he was counseled for testing positive for cocaine on a unit urinalysis given on 12 January 2011. He was informed that if his misconduct continued, separation action would be taken against him. He was command-referred to the Army Substance Abuse Program (ASAP). 6. On 18 July 2011, his immediate commander notified him that he was initiating separation action against him under the provisions of AR 635-200, paragraph 14-12c(2), for the commission of a serious offense - the abuse of illegal drugs. He stated he was recommending he receive an under honorable conditions (general) characterization of service and the basis for the action was his wrongfully using cocaine. 7. On 25 July 2011, the applicant consulted with legal counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights. After consulting with counsel, he submitted a conditional waiver of consideration of his case by an administrative separation board contingent upon his being retained in the Army. 8. On 27 July and 1 August 2011, his intermediate and seniors commanders recommended approval of the discharge action with a general discharge. 9. On 7 November 2011, he received a permanent profile in the P (Physical Stamina), U (Upper Extremities), and L (Lower Extremities) categories of the PUHLES for degenerative disc disease (DDD) of the lumbar spine without radiculopathy, right shoulder pain, DDD of the cervical spine, left ankle and bilateral foot pain, and hypercholesterolemia. His PULHES was 2-3-3-1-1-1. 10. On 15 November 2011, an informal MEB convened, and after consideration of clinical records, laboratory findings, and physical examination found the applicant had been diagnosed with DDD of the lumbar spine without radiculopathy and right shoulder pain that were medically unacceptable under the provisions of AR 40-501 (Standards of Medical Fitness), chapter 3. The MEB also found that his conditions of DDD of the cervical spine, reactive airway disease, bilateral foot and toe arthritis, headaches, sinusitis, allergies, insomnia, fatigue, erectile dysfunction, and hypercholesterolemia did meet retention standards. These were the only conditions the board considered. The MEB recommended referral to a physical evaluation board (PEB). It appears the applicant appealed the MEB findings and recommendation. 11. In January 2012, he was assigned to HHC, 1st BN, 1st BSTB, 1st Infantry Division, Fort Riley. 12. On 22 February 2012, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examination, found the applicant had been diagnosed with DDD of the lumbar spine without radiculopathy and right shoulder pain that were medically unacceptable under the provisions of AR 40-501, chapter 3. The MEB also found that his conditions of DDD of the cervical spine, bilateral foot and toe pain, allergies, insomnia, fatigue, erectile dysfunction, and left ankle arthritis did meet retention standards. These were the only conditions the board considered. The MEB recommended referral to a PEB. 13. On 21 March 2012, the separation authority disapproved the applicant's conditional waiver and referred his case to an administrative separation board. 14. On 12 April 2012, an administrative separation board met and, after hearing testimony and examining all pertinent records/evidence, found the applicant had wrongfully used cocaine. The board recommended he be discharged with a general discharge. 15. On 5 June 2012, his unit was notified that the applicant tested positive for cocaine on a unit urinalysis given on 29 May 2012. He was command-referred to ASAP. 16. On 9 July 2012, the separation authority approved the administration separation board findings and recommendations. In a memorandum, dated 9 July 2012, the separation authority, Commanding General (CG), Fort Riley, KS, directed the applicant be separated under the provisions of AR 635-200, chapter 14, vice being processed through medical channels as his medical condition was not a direct or substantial contributing cause of the misconduct and there were no other circumstances that warranted continuing with the PEB processing. On 1 August 2012, he was discharged accordingly. 17. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in the rank of SPC under the provisions of AR 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse), with an under honorable conditions (general) characterization of service. He completed 3 years, 5 months, and 29 days of net active service during this period of service. 18. On 21 June 2013, the Army Discharge Review Board denied the applicant’s request for an upgrade of discharge to an honorable discharge. 19. On 7 January 2015, the ABCMR denied his request to correct his records to show he was discharged by reason of physical disability. 20. In the processing of this case, an advisory opinion was received on 21 November 2016 from the Psychologist/Medical Advisor, Army Review Board Agency. The advisor opined: a. The applicant's DD Form 214 indicated he was discharged on 1 August 2012 under honorable conditions (general) for misconduct (drug abuse). The applicant requests his discharge be changed to a medical retirement. The documentation reviewed were records available in the DOD electronic medical record (AHLTA), limited review of VA records through the Joint Legacy Viewer (JLV), evidence the applicant submitted, and his military records. b. At the time of the applicant's discharge, he was receiving treatment from ASAP and had a history of treatment for depression and insomnia. Since leaving the Army, he has received care at the VA. Substance use disorder continues to be an area of concern per his JLV problem list. The JLV showed no disability percentage. Neither his AHLTA record nor VA record includes a PTSD diagnosis. The applicant has produced no new information that shows he had a behavioral-health disorder that would have warranted his referral for a medical evaluation at the time of his discharge. He was not close to any mental retention decision point. c. There is insufficient evidence to justify his contention that he should have been referred for a medical evaluation or had a condition at the time of his service warranting medical retirement, though he was receiving treatment in ASAP for opioid dependence. The applicant's available records do NOT reasonably support him having had a boardable behavioral health condition at the time of his discharge. He met medical retention standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) at the time of his separation. d. The applicant's difficulties with drug addiction and abuse are the prominent features of his case; however, his medical history had insufficient evidence to mitigate his substance use problems and his medical conditions were duly considered during his separation processing. A review of the available documentation did NOT find evidence of a medical disability or conditions which would support a change from in his discharge to a medical retirement. A casual nexus between the applicant’s behavioral health diagnoses and his misconduct was NOT discovered. 21. In a response to the advisory opinion, dated 5 December 2016, the applicant stated: a. The reason there was a last minute diagnosis upon his discharge showing his mental state was the Army, through incomplete diagnosis, ended with him not being fully diagnosed which is one reason for his appeal. While he was assigned to the medical MEB unit, he was sent to the National Training Center (NTC), Fort Irwin, CA, for pre-deployment training even though he was in medical processing red status. That was the beginning of his mental state going down when all his fellow MEB unit Soldiers were not sent to NTC until the last week of training. b. He did not report that he was having a mental breakdown because the Army frowns on that and says do not complain, push on. He went to the Brigade SGM and EO at NTC and they got in touch with his SGM. He explained to his SGM the harassment and medical neglect he was going through and he promised he would talk to his immediate supervisor upon return from NTC. Once they returned, the SGM acted as if they had never talked so after that he kept everything to himself. c. He completed all the stages of his MEB and everything was stopped at the PEB stage due to his breakdown and drug use which was his escape from his depression and the harassment he was going through within his unit. Washington DC issued his unit a memorandum not to send injured Soldiers to war and again his unit illegally put only him in the medical unit on orders to go to Iraq and changed his medical processing from red to green. d. He is enclosing the letter that shows he did not receive a complete psychological medical examination before his discharge except in his VA records. He is also enclosing his earlier cry for help to the National Association for the Advancement of Colored People (NAACP) and proof of the racism in the form of the unit having a 24-hours Charge of Quarters (CQ) list where injured black Soldiers did the full 24 hours alone and non-black Soldiers split the 24 hour CQ by three non-black Soldiers. Finally, he initiated a cry for help in a Congressional inquiry which he is also enclosing. He has been off drugs now for a year and has been on Prozac for his mental condition since February 2015. He was self-committed for emergency psychiatric treatment once at the VA in Detroit, MI, and the VA in An Arbor, MI. 22. With his response, the applicant provides numerous documents to include: a. Page one of a VA letter, dated 20 July 2011, stating the VA received his disability claim as part of the Integrated Disability Evaluation System (IDES) and had scheduled an examination at the nearest VA medical facility in connection with his claim for: * right shoulder pain with impingement * C-5 compression fracture with mild intervertebral disc space narrowing * left ankle arthritis * cervicalgia due to fractured vertebra * sinusitis * allergies * irritable bowel syndrome * hammer toes * fatigue * insomnia * erectile dysfunction * reactive airway disease * bilateral hand arthritis * bilateral foot and toe arthritis * headaches b. Page one of a VA letter, dated 4 December 2016, stating the applicant had one or more service-connected disabilities and his combined rating was 70 percent. This letter does not list his service-connected disabilities. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record. b. Paragraph 1-33b states when the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 or 14 does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEB. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB. c. If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing, 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 commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A case file may be referred in this way if the GCMCA finds the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge or other circumstances warrant disability processing instead of alternate administrative separation. d. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. e. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. 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 their office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB. 3. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. DISCUSSION: 1. The evidence of record confirms the applicant was undergoing separation processing for cocaine use when he was referred by an MEB to a PEB for DDD of the lumbar spine and right shoulder pain. These were the only conditions found to be unfitting. An administrative separation board subsequently recommended he be discharged under the provisions of AR 635-200, paragraph 14-12c(2), for cocaine use. 2. Notwithstanding the applicant's contention that the Army did not properly conduct his medical examination, as he was processed through IDES it was the VA that conducted his medical examination. As verified by the advisory official, there is no evidence and he has not provided any evidence that shows at the time of his discharge he had any behavioral health condition/disorder that was found to be unfitting. While he may have been diagnosed by the VA with an adjustment disorder while on active duty, the evidence of record shows his symptoms were transient and were not found to be unfitting. 3. Regardless, governing regulations do not preclude separation for misconduct while a service member is being processed through the disability evaluation system. In his capacity as the GCMCA, the CG reviewed the proceedings for both the MEB and the administrative separation board, determined his medical condition was not a direct or substantial cause of his misconduct, and directed the applicant's discharge vice continuing with the PEB process. He was properly discharged on 1 August 2012 for misconduct. There is no evidence of an error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000302 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000302 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2