IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017215 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017215 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to a Physical Evaluation Board to determine his fitness for continued military service. Should a determination be made that the applicant should have been separated under the Integrated Disability Evaluation System, these proceedings will serve as the authority to void his administrative separation and issue to him the appropriate separation retroactive to his original separation date, with entitlement to severance and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to medical retirement without benefit of the process described above. ___________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. IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017215 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 correction of his general discharge to reflect a medical retirement. 2. The applicant states he appeared before a separation board as a result of experiencing disciplinary issues related to his combat-related mental health conditions and hardship at home. His mother was dealing with several medical issues and she needed him to take care of her. Due to this additional stress, his mental health was severalty exacerbated. At the time, he was being processed through the Integrated Disability Evaluation System (IDES) for separation. The medical evaluation board (MEB) completed its findings on 31 December 2012, identifying several conditions as being unfitting for service. The separation board granted his chapter 14 discharge and recommended a 12-month probation period so he could complete the physical evaluation board (PEB) process. Contrary to the wishes of the separation board, he never completed the PEB process and he was separated from the Army. 3. The applicant provides the following: * IDES Narrative Summary (NARSUM) * DA Form 3947 (MEB Proceedings) * Termination of MEBs memorandum * Department of Veterans Affairs (VA) Rating Decision 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 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 the cases 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. 2. He enlisted in the Pennsylvania Army National Guard (PAARNG) on 11 June 1997, with prior U.S. Marine Corps (USMC) service. He held military occupational specialty 88M (Motor Transport Operator). He reenlisted in the PAARNG on 29 May 2007. 3. He entered active duty in support of Operation Iraqi Freedom (OIF) on 12 June 2008. He served in Iraq from 6 January 2009 to 15 October 2009. 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 26 September 2011 – twice failing to go to his prescribed place of duty; his punishment consisted of a reduction to pay grade E-3, a suspended forfeiture of pay, and 14 days of extra duty; his appeal of the punishment was denied on 19 October 2011 * 22 January 2013 – failing to go to his prescribed place of duty and behaving disrespectfully toward a superior commissioned officer; his punishment consisted of a reduction to pay grade E-2, a suspended forfeiture of pay, and 14 days of restriction and extra duty 5. On 31 December 2012, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the following conditions: * delusional disorder * post-traumatic stress disorder (PTSD) * left shoulder rotator cuff tendonitis with osteoarthritis * left knee osteoarthritis * severe obstructive sleep apnea * left hemiparesis * left achilles tendonitis/enthoesophy * left pes planus * right and left plantar fasciitis with calcaneal spurs * left haigus valgus 6. The MEB determined his medical conditions of hypertension, erectile dysfunction, bilateral tinnitus, and left cranial nerve V and VII partial paralysis met retention standards. The MEB recommended his referral to a PEB. He concurred. 7. On 6 March 2013, the applicant's unit commander notified the applicant of initiation of action to separate the applicant under the provisions (UP) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for patterns of misconduct. The unit commander cited the applicant's counseling for failing to go to his appointed place of duty, failing to comply with the Army overweight and body fat standards, failing to report to formation clean shaven, disobeying several lawful orders, being disrespectful to an officer and a noncommissioned officer (NCO), and being caught speeding on post. He recommended the applicant receive a general discharge and advised him of his rights. 8. On 6 March 2013, he consulted with counsel and acknowledged receipt of the proposed separation action. He requested an administrative separation board. 9. On 22 May 2013, an administrative separation board convened with the applicant and his counsel present. After careful consideration of the evidence presented, the administrative separation board determined he failed to be at his appointed place of duty, failed to comply with Army weight control standards, failed to report to formation clean shaven, disobeyed lawful orders, disrespected an NCO, disrespected an officer, and was involved in speeding on post. The administrative separation board recommended his discharge under honorable conditions (general). The board also concluded that the applicant should receive a probationary period not to exceed 12 months UP AR 635-200, paragraph 1-18. 10. On 27 June 2013, after reviewing all matters, the separation authority approved his discharge for misconduct. The separation authority stated that he found the applicant's medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendation for an administrative separation board and that there were no other circumstances of the applicant's case that warranted disability processing instead of administrative separation processing. 11. On 28 June 2013, the Medical Director, MEB, terminated the applicant's MEB in view of the approved general discharge. 12. The applicant was discharged accordingly on 3 July 2013. He was credited with completing 5 years and 21 days of active service. 13. Orders Number 225-1086, issued by the PAARNG discharged him with a general discharge effective 3 July 2013. 14. There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitation and requested an upgrade of his discharge. 15. He provided a VA Rating Decision, dated 1 October 2014, showing he was granted service connected disability compensation for several medical conditions, to include anxiety disorder and traumatic brain injury (TBI). The VA denied service connection for PTSD and several other medical conditions. 16. On 15 November 2016, an advisory opinion was provided by the Army Review Boards Agency (ARBA) Medical Advisor. The ARBA Medical Advisor reviewed the available records and found the applicant did not meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. The applicant’s medical conditions were duly considered during medical separation processing. The applicant was administratively separated for patterns of misconduct. 17. The advisory opinion was provided to the applicant on 16 November 2016 for acknowledgement/rebuttal. In his response, the applicant stated the judge at the Military Tribunal, Fort Stewart, GA, ordered him to undergo neurological therapy due to his misconduct being a direct result of his brain damage. At that point, his MEB process was supposed to continue; however, his unit commander never released his MEB and his case team concluded that he would not be allowed to go to therapy. Since his MEB was not continued and he was not allowed to go to therapy, he found it counterproductive to remain there while his ailing mother in Central Florida had no one to take care of her. He requested to end his orders so he could assist his mother in obtaining medical attention. He never received the therapy he needed on active duty while assigned to the Work Transition Program. He provided several VA Progress Notes showing he was diagnosed with PTSD, bipolar disorder, and alcohol use disorder in June 2016 and he is receiving medical treatment. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation states in: a. Chapter 14 – The established policy and procedures for separating members for misconduct. Specific categories include a pattern of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. Paragraph 1-18 – A highly deserving Soldier may be given a probation period to show successful rehabilitation before the Soldier’s enlistment or obligated service expires. The separation authority or higher authority may suspend (except fraudulent entry) execution of an approved separation for a period of full-time military duty not to exceed 12 months. c. Paragraph 1-33a – Disposition through medical channels takes precedence over administrative separation processing. d. Paragraph 1-33b(1) – If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of AR 635-40, the GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated and the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. e. Paragraph 4-3 – An enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, signed by the General Court-Martial Convening Authority (GCMCA), must be forwarded with the disability case file to the PEB. A case file may be referred in this way if the GCMCA finds: (1) The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or (2) Other circumstances warrant disability processing instead of alternate administrative separation. 2. AR 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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/her office, grade, rank, or rating. 3. AR 40-501 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. 4. 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%. 5. 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: 1. The applicant served on active duty from June 2008 to July 2013 with deployment to Iraq from 6 January 2009 to 15 October 2009. He was administratively discharged due to a pattern of misconduct. 2. The evidence shows during his period of active duty, he accepted NJP between 2009 and 2012 for various infractions of misconduct. Meanwhile, he was undergoing disability processing. 3. In December 2012, an MEB diagnosed him with several medical conditions that did not meet medical standards. He was referred to a PEB. However, action was initiated to separate him for misconduct. He requested a separation board that subsequently confirmed his pattern of misconduct and recommended his discharge for misconduct. 4. The separation authority concluded that the applicant's medical conditions were not the direct or substantial contributing cause of the conduct that led to his recommendation for administrative separation. He was separated accordingly. 5. The regulations afford a great deal of discretion for GCMCAs confronted with a situation in which a Soldier is being processed simultaneously for administrative separation and for physical disability evaluation. AR 635-40 provides that where an enlisted Soldier is undergoing administrative separation procedures which authorize a discharge under other than honorable conditions, the command may not initiate or continue that Soldier's disability processing. However, the GCMCA in such circumstances may abate the separation proceeding if the GCMCA finds the disability was a substantial contributing cause to the misconduct or other circumstances warrant disability processing. 6. The Army's enlisted separations regulation reverses priorities somewhat when it advises commanders that medical channels take precedence over administrative separation processing. But later in the same section of the regulation, AR 635-200 parallels the provisions of AR 635-40 when it states that, when confronted with a situation in which a Soldier is facing administrative separation but an MEB has recommended PEB referral, a GCMCA may direct in writing that a Soldier be processed through the physical disability system if the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. Thus, these regulations do not mandate that a GCMCA abate administrative separation proceedings even for a Soldier whose misconduct may have been caused by a disability. 7. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In accordance with AR 635-200, his pending administrative separation for misconduct discontinued further physical disability processing. 8. A disability decision rendered by another agency does not establish error on the part of the GCMCA in his decision that the applicant would be separated for misconduct. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of his or her discharge. The VA may award ratings because of a service-connected disability that affects the individual's civilian employability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017215 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2