ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170008318 APPLICANT REQUESTS: That he be permanently retired by reason of physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 3349 (Physical Profile), dated 19 March 2014 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 20 March 2014 with approximately 130 pages of medical records * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement, dated 20 January 2014 * Enlisted Record Brief (ERB) * Purple Heart Certificate * Bronze Star Medal with "V" Device Certificate and Citation * Joint Department of Defense (DOD)/Department of Veterans Affairs (VA) Disability Evaluation Pilot Referral * VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim) * Applicant's discharge proceedings FACTS: 1. The applicant states: * He is requesting liberal consideration by the Board during the examination of his evidence * His narrative reason for separation is in error and should be changed from Misconduct (Serious Offense) to medical retirement * He was diagnosed with post-traumatic stress disorder (PTSD) while on active duty and the misconduct that led to his discharge was not intentional but a symptom of his illness * He was found unfit by the Integrated Disability Evaluation System (IDES) * His command pushed for an honorable discharge and processed him through an administrative separation resulting in the termination of his mental health care instead of allowing him to continue to receive the proper treatment for his PTSD * His command failed to follow the discharge regulation 2. The applicant enlisted in the Regular Army on 3 October 2005. His ERB shows he was promoted to the rank of sergeant/E-5 on 1 May 2009 and that he served in Iraq from 1 May 2008 to 31 July 2009. 3. The applicant received a General Officer Memorandum of Reprimand (GOMOR) on 23 December 2010 for driving under the influence of alcohol (DUI) on 30 October 2010. 4. The applicant's ERB also shows he served in Afghanistan from 22 April 2011 to 31 March 2012. His record further shows he was awarded the Purple Heart for wounds received in action on 3 October 2011 and the Bronze Star Medal with "V" Device for valorous actions while engaged in direct combat operations in support of Operation Enduring Freedom from 24 June to 29 June 2011. 5. The applicant reenlisted on 29 January 2013 for a period of 6 years. 6. The applicant received a second GOMOR on 22 January 2014 for a DUI on 19 October 2013. 7. An IDES Narrative Summary (NARSUM) to MEB, completed on 19 March 2014, shows the applicant was diagnosed with PTSD, which failed retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). He was also diagnosed with 11 additional medical conditions that met retention standards. 8. On 20 March 2014, an MEB found the applicant's PTSD diagnosis failed to meet retention standards and recommended his referral to a Physical Evaluation Board (PEB). The additional 11 medical conditions were found to meet retention standards. 9. On an unspecified date, the applicant's immediate commander notified him of his intent to separate the applicant from the Army under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, with an honorable characterization of service. The commander cited the reason for the proposed separation action was the applicant's DUI on 19 October 2013, which was his second alcohol related incident during his military career. The applicant was also advised of his right to consult with legal counsel and to request a hearing before an administrative separation board. 10. On 28 May 2014, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct and of the rights available to him. He waived consideration of his case by an administrative separation board. 11. On 28 May 2014, the applicant's commander provided a memorandum to clarify the reasons for the applicant's proposed separation action. The commander stated: This memorandum has been written to clarify the submission of separation of [the applicant]. Above all, it is my primary concern that this decorated veteran is taken care of properly, receiving the care he needs while maintaining good order and discipline in my company. It is my belief that [the applicant] is not fit for continued military service due to his medical issues as well as his misconduct, specifically the multiple DUIs (one of which was prior to my command). The concern arises since it was only after he received notification of his blood alcohol content via a blood sample, six weeks after he was originally arrested for this, his second DUI, [the applicant] began to seek treatment for his medical needs as well as a means of being approved for a medical discharge instead of a chapter. Prior to being notified of his DUI, [the applicant] was performing admirably while on duty, and was therefore specially selected for specialized training events. An example of an event where for which he was selected was a Multinational Special Operations Training Event where only 14 Soldiers were hand selected across the brigade to participate. Now that he is being treated, he is no longer capable of conducting day to day operations; a complete change to how he was able to operate prior to any of the aforementioned incidents. Additionally, prior to my command, [the applicant] was released from Engineer ALC [Advanced Leader Course] Class 701-13 for Academic Deficiency/Not Meeting Course Standards, and therefore does not meet the criteria for continued progression within the United States Army. Again, it is my primary concern that [the applicant] receives the care he needs while I maintain good order and discipline in my company. I cannot speak to the medical nature of [the applicant's] issues, and if the decision is made to approve [the applicant's] medical discharge, then the separation packet is no longer necessary. If the MEB is denied, however, then it is my recommendation that [the applicant] be separated due to both his failure to reform his conduct while off duty and his medically proven ability to understand right from wrong, despite the prognosis that is outlined in this packet. We have ensured that no matter how [the applicant] is transitioned out of the military that "he will receive the needed care, since he has already been in processed through the VA when he received inpatient care for PTSD. 12. The separation proceedings were reviewed by an official from the Office of the Staff Judge Advocate (JAG) who found the proceedings legally sufficient. The JAG official indicated that the applicant's company and battalion commanders recommended the applicant's separation through medical channels. 13. On 12 August 2014, the Commanding General, 25th Infantry Division, approved the separation action under the provisions of AR 635-200, paragraph 14-12c, and directed the applicant received an honorable characterization of service. The Commanding General stated the following: I have reviewed the administrative separation packet and medical evaluation board proceedings in the case of [applicant's name and unit], under the provisions of AR 635-200, Chapter 14, Paragraph 14-12c, Commission of a Serious Offense. I find that the Soldier's medical condition is not the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. I further find that other circumstances of the individual case do not warrant disability processing instead of further processing for administrative separation. 14. The applicant's DD Form 214 confirms he was discharged on 12 November 2014 under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct (serious offense) with an honorable characterization of service. 15. On 16 April 2018, the Army Review Boards Agency psychologist/ advisor provided an advisory opinion. The advisory found the available documentation showed there is insufficient evidence of a medical disability or condition which would support a change to the reason for the discharge in this case. Based on the information available for review, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army or to overrule the Major General’s rejection of medical retirement for him. The Major General did provide the applicant with a character of discharge that has made it possible for him to obtain medical assistance and disability benefits that are the normal due of a combat Soldier. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion on 17 April 2018 and given an opportunity to submit comments. He responded and provided a three-page rebuttal expressing his disagreement with the medical advisory opinion's findings and conclusions. He based his disagreement on the fact that he was diagnosed with PTSD. He also provided with his rebuttal the following documents: * DA Form 3947 * IDES NARSUM * DD Form 2900 (Post-Deployment Health Re-Assessment) * Standard Form 600 (Chronological Record of Medical Care) 17. The complete rebuttal to the medical advisory and additional documents provided by the applicant were provided to the Board for their review and consideration. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the medical advisory and rebuttal submitted by the applicant, the Board determined that relief was not warranted. Based upon the legal review of the discharge proceedings prior to the Commanding General acting on the discharge, the specific statement from the Commanding General stating he considered the medical condition in deciding to discharge the applicant, as well as the medical advisory stating, “the available documentation showed there is insufficient evidence of a medical disability or condition which would support a change to the reason for the discharge in this case,” the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 4/29/2019 X CHAIRPERSON Signed by 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. REFERENCES: 1. 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. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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. It provides for an MEB that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of 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. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 4-3 (Enlisted Soldiers subject to administrative separation) states that except as provided below, 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 the following: (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. (2) Other circumstances warrant disability processing instead of alternate administrative separation.