IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180000946 APPLICANT REQUESTS: a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Physical Profile Record * Enlistment Documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief * Security Clearance Application FACTS: 1. The applicant states, in effect, he should have been medically discharged. 2. The applicant enlisted in the Regular Army on 22 February 2012. 3. The applicant provides an undated temporary behavioral health S1 level profile with a 10 October 2016 expiration date. The profile prohibited deployment and access to weapons. 4. The applicant's medical records are not available for the board's review. 5. The applicant's complete separation packet is not available for review; however, his record contains: a. A memorandum dated 21 July 2016, which directed his service be characterized as general, under honorable conditions. There is no selection made as it pertains the recommendations of the medical evaluation board to have the applicant's case being referred to a physical evaluation board (PEB). b. A DD Form 214 which shows he was separated on 8 August 2016, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2) due to Misconduct (Drug Abuse). His service was Characterized as general, under honorable conditions. He completed 4 years, 5 months, and 17 days of net active service this period. 6. On 20 February 2020, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor concluded according to records reviewed, the misconduct (and proposed UCMJ action) preceded the MEB process. Afterwards, the MEB (for low back pain) and Chapter processes ran concurrently. The MEB Clinic indicated the back condition did not meet retention standards, however the back condition was not the direct result of, nor a substantial contributing cause of the applicant’s misconduct. In the end, Command made the decision to separate the applicant for misconduct. Based on review of all available information, the reviewer found insufficient medical evidence to refer this case to the Army Disability Evaluation System for consideration for medical discharge processing. A copy of the complete medical advisory was provided to the Board for their review and consideration. 7. On 25 February 2020, the applicant was provided a copy of the advisory opinion and given the opportunity to submit comments or a rebuttal. He did not respond. 8. Army Regulation 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 considered appropriate for a Soldier discharged under this chapter. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating. a. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence b. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, 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 so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the absence of a separation packet, the two memoranda in the records and the reason for his separation. The Board considered the profile document the applicant provided and the review and conclusions of the medical advising official to include a referral to MEB proceedings. The Board agreed with the advising official finding insufficient evidence to refer the case for disability evaluation system processing in lieu of an administrative discharge. The Board found insufficient evidence of in-service mitigation to overcome misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 considered appropriate for a Soldier discharged under this chapter. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army 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 office, grade, rank, or rating. 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. a. 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 military service. b. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence c. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, 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 so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that 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 VA does not have the 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. These two government agencies operate under different policies. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000946 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1