MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 April 1999     
	DOCKET NUMBER:   AR1999023752

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his general discharge be changed to a discharge for physical disability. 

APPLICANT STATES:  That he was prescribed heavy medication, was treated for depression, and in constant pain from service connected injuries.  He states that he received a general discharge for being 10 minutes late for work, and for making a false statement to an officer and an NCO.  In spite of his good record, he was not allowed to face his accusers, and his request for a court-martial was denied.  

He was injured during training on four occasions, received a permanent profile, and appeared before a MOS (military occupational specialty) review board to determine if he should be medically discharged from the Army.  In spite of his injuries, his requests to be assigned to a medical holding unit were denied.  The board determined him to be medically unfit for active duty in any MOS, and that his case be forwarded to a medical evaluation board (MEB) and a physical evaluation board (PEB).  The PEB determined that he should receive a 10 percent disability but did not address his two herniated discs in his cervical spine, and did not attempt to compensate him for his degenerative disc disease.  He has since developed a bone spur in his cervical spine, had hepatitis C in December 1994, and in 1996 severed tendons in his right small finger, which is permanently disabled to this day.   He appealed the board’s decision, and the board concluded it did not have enough information.  He was returned to his unit, and while waiting, was treated for chronic depression, and more medication was prescribed for him.

The medication he was taking should have received consideration before a decision was made on his discharge.  Many doctors and pharmacists stated that the medications that he was taking could have been the cause of his inability to wake up, the reason for his tardiness.  Some even suggested that he was being overmedicated.  The applicant provides a list of all the medications that he was taking, and their side effects.

He states that he never had any problems before he was required to work long hours as a finance clerk.  It was hard to concentrate because of the medication.  He requested and was assigned a new job in the Surgeon’s office and the NCO in that office could not understand the severity of his medical problems or his medications.  Depression and tardiness became an issue. 

He repeatedly requested a transfer to a medical holding company and was refused, even after requesting help from his congressman.  The real reason he was refused a transfer was because his father wrote in one of his letters to a congressman, that the medical center was negligent in his care.  He states that in spite of profile, he was constantly required to perform physically arduous duties. 

If he had been properly treated the incidents would not have happened.  With his medical problems and his general discharge, it has been difficult to find employment.  He does not have the benefits of the GI bill, Army college fund, or unemployment benefits.  He always did what he had to, in order to complete any assigned task, but instead of being commended, he received disciplinary action. The division surgeon stated that if he was not being separated from the Army, he would recommend him for an award.

He states that in spite of tremendously adverse conditions, he did his job, received awards; completed his enlistment, and most of the time on his extended contract.  He did not have any problems until he refused the Army’s 10 percent disability rating.  The charges against him of misconduct were ludicrous and any wrong doing on his part was due to the medications he was receiving, causing drowsiness and depression. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army on 30 June 1993, completed training, to include airborne training, and in January 1994 was assigned to an airborne infantry unit in Panama.  In August 1994 he was assigned to an 82nd Airborne Division unit at Fort Bragg, North Carolina.

Medical records in late 1994 show that he was awarded a temporary profile for a herniated disc, bulging disc in his neck, and a pinched nerve. 

On 27 February 1996 a MEB indicated that the applicant had neck and back pain which began in airborne school in 1993 after a bad PLF, and was diagnosed with minor concussion and mild whip lash.  He reinjured his neck in Panama in 1994, increasing his neck pain and creating pain in his upper back and chest.  He was reevaluated at Womack Army Medical Center and found to have multiple bulging discs in his neck at the C5, C6 level as well as in his lower back at L4, L5 level.  He was unable to run, ruck, lift greater than 20 pounds, and unable to wear a helmet.  He wanted to stay in the Army.  He was taking multiple medicines to control his pain.  He also had a positive hepatitis C with elevated liver enzymes. 

A 10 April 1996 MEB diagnosed the applicant’s condition as herniated nucleus pulposus C5 and C6, and recommended he be referred to a PEB.   

On 22 June 1996 a PEB determined his condition to be neck pain with herniated nucleus pulposus C5 and C6 and degenerative disc disease.  The PEB indicated that he was physically unfit and recommended a disability rating of 10 percent, and that the applicant be separated with severance pay.  On 15 July 1996 the applicant nonconcurred, and requested a formal hearing.

The applicant received a radiologic examination on 16 July 1996, which showed a right paracentral disc protrusion of C5-6 with associated spondylosis and right sided deformity of the cervical cord, with a smaller central and right paracentral disc protrusion at C4-5 with minimal cord deformity.  There was increased cord deformity at C5-6 in comparison to the prior study in 1994.  

In a 25 July 1996 memorandum, a medical doctor stated that the applicant was being treated for chronic neck pain and that some of the drugs he was taking can cause drowsiness.

On 26 September 1996 the applicant voluntarily requested to remain on active duty beyond his scheduled release date 29 October 1996 for the purpose of completing hospital care and/or physical disability evaluation. 

On 19 December 1996 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go at the time prescribed to his place of duty.  He stated that he did not demand trial by court-martial, that he requested an open hearing, and that a person to speak in his behalf was not requested.  He stated that matters in defense, mitigation, and/or extenuation were not presented.  Among other punishments, he was reduced to pay grade E-3.  He appealed and his appeal was denied on 28 January 1997. 

In a 3 March 1997 memorandum to a member of congress, the 82nd Airborne Division surgeon stated that he had taken a great deal of personal interest in the applicant, and that the applicant had duty in his office for the past year.  He stated that the applicant was a sensitive and engaging young man who had made a significant contribution to the office, which was in stark contrast to the applicant, as a soldier, who was sorely lacking in motivation, military bearing, and moral character.  He stated that the applicant had been advised on many occasions to waive his rights in the PEB process, separate from the Army, and pursue his claim through the VA, but he continued to pursue his claim while on active duty.  He stated that many mornings the applicant failed to report to work on time, was called by his office, and typically reported within 10 to 15 minutes, bright eyed and bushy tailed, and discharged his duties well.  He stated that after a full year of observing the applicant, he could say with 100 percent confidence that his medications in no way prevented him with getting out bed in the morning. His colleagues agreed with him.  He stated that the applicant could not be assigned to a medical holding company, because that type of unit was reserved for soldiers who were incapacitated or who were traveling from referring installations for ongoing care.

In an addendum to the MEB, directed by the PEB, the applicant was evaluated at Walter Reed Army Medical Center Neurosurgery.  A myelogram showed minimal compression without progression around the cord.  The examination was normal. The assessment was, no significant etiology found for complaints.  No surgical indication at that time.  The addendum indicated that the applicant had several psychological evaluations, and in May 1996 an assessment was made that the applicant’s suicidal ideation was chronic dating back to high school and consistent with behavior seen in borderline patients.  The recommendation was an administrative discharge.  In December 1996 he was assessed by the division psychologist, who basically confirmed the previous findings, somatization disorder, and borderline personality disorder (histrionic traits).  On                       6 February 1997 he was evaluated by the division psychiatrist who supported the previous impressions.  He found the applicant not actively suicidal, but at some risk due to his poor coping skills and tendency to substance abuse.  He recommended discontinuance of some medicines and limitation of the number of pills per prescription.  His condition was diagnosed as ethanol abuse, isolated incident, as having a personality disorder not otherwise specified, borderline traits:  self mutilating behavior, chronic feelings of emptiness, difficulty controlling anger.  He had a herniated nucleus pulposus C5-C6; hepatitis C; right 5th digit tendon repair.  On 27 March 1997 the applicant nonconcurred in this addendum. He stated that he was not abusing his medications.  He stated that he was not sure if the addendum was completely unbiased, in that the doctor [preparing the addendum] was the division surgeon, who he works for, is in his chain of command; and he has filed IG, congressional, and presidential complaints against his office.  He was also the person who was recommending that he be discharged for patterns of  misconduct.  He stated that almost all of his medications caused drowsiness, and two cause depression, requiring sleep for his body to heal.  He stated that the unit states that they are tired of his complaints, and tardiness (probably medically related).

On 27 March 1997 he again extended his enlistment.  His new release date was to be 29 April 1997.

A 2 April 1997 report of mental status evaluation shows that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention in the Army. 

On 3 April 1997 the applicant’s commanding officer notified the applicant that he was initiating action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c, in that he made a false official statement to a commissioned officer and an NCO, he received nonjudicial punishment for failure to go to his place of duty, and because he received numerous counseling statements for failure to go to his place of duty.  That official stated that he was recommending that he receive a general discharge.

The applicant’s records show numerous counseling statements from March 1996 to March 1997, for failure to report to place of duty at the proper time, failure to follow instructions, constantly missing scheduled appointments and formations, disrespect, insubordination, disobeying a direct order from an NCO, dereliction of duty, attitude, disregard for military discipline, malingering, and a false statement to an officer, among other disciplinary infractions.  

The applicant consulted with counsel, stated that he was advised of the basis for the contemplated action, and of the rights available to him.  He stated that he understood the nature and consequences of the general discharge that he might receive.  He submitted a statement in his own behalf to the commander of the XVIII Airborne Corps, citing his military and medical history, to include his awards, assignments, his physical labor despite his medical profile.  He stated that he was found not fit for duty in October of 1995, but almost two years later he was still in an infantry unit.  He stated that his current medical condition was that he had degenerative disc disease, a herniated and bulging disc in his neck and a bone spur, that he was told he had two more bulging discs in his lower back, and was diagnosed as having chronic hepatitis C.  He also severed a tendon in his right small finger.  He has received counseling statements, and nonjudicial punishment on two occasions.  He stated that that combination of all his medications and his weak liver took a serious toll on his body.  He stated that at one time he was taking close to 30 pills a day.  He had put up with a lot of harassment and discrimination since his injury.  He stated that he does care about being on time for work, and that if he did not care he would not have shown up for work at all, but gone AWOL.  He was late because of his medications.  He has tried to have people wake him, and has asked people to call him; however, he was never given the benefit of the doubt.  He stated that he had sworn statements from former comrades who can vouch for him.  His medical conditions have affected his life, and he has time and again requested to be placed in a medical holding detachment.  He stated that he waited six months beyond his separation date for a PEB, he was going through depression, and his medical condition was a contributing cause to his patterns of misconduct (if any). He requested a medical board instead of an administrative separation.

On 3 April 1997 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged from the Army and that he receive a general discharge.

On that same date a Judge Advocate General officer recommended that the recommendation be forwarded to Corps commander for a decision, and on        14 May 1997 that person approved the recommendation.

The applicant was discharged at Fort Bragg, North Carolina on 3 June 1997.  He had 3 years, 11 months, and 4 days of service.  His DD Form 214 shows award of the Army Achievement Medal (2nd award), the Good Conduct Medal, and the Expert Infantryman Badge, among others.

On 20 May 1998 the Army Discharge Review Board, in an unanimous decision, denied his request to upgrade his discharge.  

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, convictions by civil authorities, desertion or absence without leave.  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.

Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.  

The Manual for Courts Martial indicates that the maximum punishment for making a false official statement is a dishonorable discharge and five years confinement. 

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed is considered lenient considering all the facts of this case.  The Board notes that the applicant could have received a discharge under other than honorable conditions.

2.  The applicant has not shown, to the satisfaction of this Board, that his disciplinary infractions were caused by anything other than his own deliberate misbehavior.  His contention that the medications that he was taking were a primary reason for his conduct is unsupported by the evidence. 

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__amc___  __esc___  ___cjp__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023752	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990429	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.