MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 April 2000
	DOCKET NUMBER:   AR2000039664

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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:  In effect, that the record be corrected to uphold and reflect the decision of a Physical Evaluation Board (PEB), which was approved on 26 August 1999, and found him unfit for duty and recommended that he be placed on the Temporary Disability Retired List (TDRL) with a 30 percent disability. 

APPLICANT STATES:  In effect, that his request is based on the fact that the United States Army Physical Disability Agency (USAPDA) erroneously found him fit for duty based on evidence independent of the PEB, thus, denying him the opportunity to a formal hearing and legal representation.  He states that he believes the USAPDA erred when reversing the decision of the PEB in the following ways:  when it used the presumption of fitness rule as a basis; evidence used in the process was used in violation of the use of limited use evidence policy; incorrect facts were used in the USAPDA deliberations; and the misconduct involved was not punitive or prohibited under the UCMJ.  The applicant provided the extensive brief enclosed, which expands his arguments on each of the points he raises.  In addition, he provides the following enclosed documents in support of his request:  the findings of an Army Regulation (AR) 15-6 investigation, dated 24 November 1998; USAPDA findings, dated 
29 February 2000; the USAPDA Department of the Army (DA) Form 18 (Revised PEB Proceedings), dated 28 June 1999; the DA Form 199 (PEB Proceedings), dated 26 August 1999; and a Medical Evaluation Board (MEB) Packet, dated 
1 September 1999.

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

On 23 May 1984, he was appointed an infantry 2nd lieutenant in the USAR.  On 
4 June 1984, he was tendered an appointment in the Regular Army and he was concurrently ordered to active duty.  He has continuously served on active duty since that date, and currently serves in the rank of major/O-4, which he attained on 1 December 1995.  He is presently attached to the Directorate of Public Works, Fort Polk, Louisiana, and is performing duties with civilian engineers in an non-infantry related primary specialty.  

On 14 November 1998, while he was serving as the executive officer of an infantry battalion at Fort Clayton, Panama, the applicant was involved in an incident with two junior officers, one male and one female, at their quarters.  He entered their home uninvited and caused a disturbance, and further had an altercation with the junior female officer involved.  The day following the incident the applicant departed Panama on ordinary leave to deal with personal problems at home.

On 17 November 1998, an investigation was initiated, under the provisions of 
AR 15-6, to determine the facts and circumstances surrounding alleged incidents of misconduct on the part of the applicant.  

On 23 November 1998, after being advised he was under investigation, the applicant self referred himself to the Army Drug and Alcohol Prevention Control Program (ADAPCP), at Fort Polk, Louisiana to received assistance with his alcohol related problems. 

On 24 November 1998, a DA Form 1574 (Report of Proceedings by Investigating Officer) was completed by the AR 15-6 Investigating Officer (IO).  This document provided findings and recommendations in regard to the applicant’s alleged misconduct.  The IO’s findings indicated, in effect, that the applicant abused his rank and position during a confrontation with a male junior officer on 8 November 1998, and that he caused a disturbance at the residence of two junior officers by entering their home uninvited and having an altercation with one, on 
14 November 1999.  It was also found that on this occasion, the applicant intimidated the two junior officers to the point that they were unsure of what they should do about his presence.  This conduct was determined to be unprofessional and unbecoming an Army major, and to be prejudicial to the good order and discipline of the battalion in which all the officers served.

The IO also found that the applicant had an inappropriate relationship with the junior female officer, referred to in the preceding paragraph, and while the relationship was not physically sexual in nature, it did involve a familiarity that the applicant did not have with anyone else in the unit.  In addition, the IO determined that the applicant sexually harassed this junior female officer by pressuring her for sex on numerous occasions.  The junior officer, however, did not want the relationship to become a sexual one and believed she could control the applicant’s desires for a sexual relationship and still remain close friends.  This was not the case, as evidenced by the incidents of 8 and 14 November 1998, which are referred to in the preceding paragraph.  

The IO also found that while the preponderance of evidence did not show that the applicant had another inappropriate sexual relationship with a second subordinate female officer, he believed it was possible that this sexual relationship did exist.  He cited as evidence of the relationship, email traffic from the applicant to the junior female officer referred to in preceding paragraphs, which the junior female officer kept and which contained information that indicated that this other affair did in fact exist.

The IO made a recommendation that the applicant be relieved from his current duty position as the executive officer of an infantry battalion.  In addition, he  recommended that the applicant be charged with sexual harassment based on his repeated unwanted sexual advances toward a junior female officer; that he be charged with assault for pushing the junior female officer during the 
14 November 1998 incident; and for conduct unbecoming an officer and a gentleman based on his having had an inappropriate relationship with the aforementioned junior female officer, which was contrary to the good order and discipline of the unit.  Finally, the IO recommended that the applicant be charged with abusing his rank with the junior male officer during the incident of 
8 November 1998.

In December 1998, the applicant was placed in the Substance Abuse Rehabilitation Department (SARD), Point Loma, California, in an in-patient status to be treated for his alcohol abuse.  In mid January 1999, during an appointment with a psychological service officer, the applicant admitted to having nightmares over an incident that occurred while he was serving in Somalia.  The applicant indicated that he had shot and killed an unarmed civilian when the patrol he was with was ambushed.  The counselor in a statement made later to a Criminal Investigation Command (CID) investigator, stated that while she did not diagnose the applicant with Post Traumatic Stress Disorder (PTSD) at that time, he did display some of the major symptoms and she would have treated him as if he had it.  

On 29 January 1999, a change of duty officer evaluation report (OER) was prepared on the applicant , covering the period 5 June 1998 to 14 October 1998, which evaluated him as the battalion operations officer.  In Part V (performance and potential) the rater placed the applicant in the third block (unsatisfactory performance-do not promote) and explained that the rating was the result of the applicant being involved in an inappropriate relationship with a junior female officer during the rating period.  

In Part VIIa of this OER, the senior rater (SR) placed the applicant in the third box (do not promote) and in Part VIIb the SR evaluated the applicant “below center of mass, do not retain”.  The SR’s comments of explanation stated, in effect, that the applicant was the most proficient operations officer in the brigade and his operational achievements were outstanding; however, he failed to adhere to Army Values and demonstrated poor judgement in his personal and professional behavior by pursuing an inappropriate relationship with a subordinate officer.

In January 1999, the applicant was advised by his legal counsel that his chain of command had chosen to pursue court-martial charges against him, unless he elected to resign.  At this time the applicant submitted his unqualified resignation request. 

On 24 February 1999, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for the following offenses:  being drunk and disorderly on 14 November 1998, which resulted in conduct of a nature to bring discredit upon the armed forces; for violating a general lawful regulation between 5 June and 3 November 1998, by having an improper relationship with a junior female officer; and by engaging in an inappropriate relationship with a junior female officer between 5 June and 3 November 1998, which constituted conduct unbecoming an officer and a gentleman.  His punishment for these offenses included receiving an admonition and a forfeiture of $1,000 per month for 2 months (suspended).  Block 7 of the NJP proceedings contains the applicant’s election not to appeal the action and his signature authenticating this decision. 

On 19 March 1999, the Letter of Admonishment, called for by the NJP action, was issued to the applicant by the commanding general of the United States Army South, Fort Clayton, Panama.  This letter was ultimately filed in the applicant’s official file.

On 9 April 1999, a relief for cause OER was prepared on the applicant, covering the period 15 October 1998 to 16 December 1998, which evaluated him as an infantry battalion executive office.  In Part V, the rater placed the applicant in the other block and explained, in effect, that the applicant had been relieved of his duties as a result of an AR 15-6 investigation, in which it was determined that during the rating period he had engaged in an improper relationship with a female 2nd lieutenant in the battalion.  

In Part VIIa of the relief for cause OER, the SR placed the applicant in the other block and Part VIIb the SR evaluated the applicant “below center of mass-do not retain”.  He explained in his comments, in effect, that he directed the relief of the applicant based on the findings from a AR 15-6 investigation.  He expounded by indicating that the applicant’s inability to exhibit personal control in his personal life and his pursuit of an improper personal relationship with a subordinate officer in his command clearly compromised his ability to function as executive officer of the battalion.  He further stated, the applicant’s inappropriate personal behavior and poor judgement resulted in a lack of trust and confidence in his ability to function as an officer in the Army.

On 22 April 1999, the results of a CID investigation into the applicant’s admission that he killed an unarmed civilian while deployed in Somalia in 1993, which he made while undergoing treatment for alcoholism, were published.  The conclusion of this investigation was that there was insufficient evidence to believe that the applicant committed the offense of negligent homicide.

On 28 June 1999, the applicant’s request for unqualified resignation was approved by the Army Personnel Command (PERSCOM).  This approval action directed that the applicant receive a general, under honorable conditions discharge and that he be separated on 12 July 1999.

On 12 July 1999, the Office of the Surgeon General of the Army approved what was the first of three medical extensions granted to the applicant to be held beyond his approved separation date.  This first extension was for 3 months beyond his established 12 July 1999 separation date, until the MEB/PEB process was complete, or until fit for separation, whichever came first.

On 6 August 1999, a DA Form 3947 (MEB Proceedings) was prepared, which contained the findings and recommendations of the MEB at Fort Polk, Louisiana that evaluated the applicant’s case.  The MEB concluded that the applicant had a PTSD and alcohol dependence that were in remission and that he suffered from impotence.  The MEB determined that these conditions were incurred while the applicant was entitled to base pay and that they were permanently aggravated by service.  The MEB finally recommended that the applicant’s case be referred to a PEB.

On 26 August 1999, PEB proceedings pertaining to the applicant were prepared at Fort Sam Houston, Texas.  The PEB found that the applicant’s PTSD was rated as definite and recommended a disability percentage of 30 percent and that this percentage was awarded because the condition was the result of actual combat during a period of war.  The PEB found that the applicant’s alcohol abuse condition did not rate compensation.  The PEB further determined that the applicant’s medical and physical impairment prevented a reasonable performance of duties required by his grade and military specialty and determined that he was physically unfit for duty.  The PEB recommended a combined rating of 30% and that the applicant’s disposition be to be placed on the TDRL.  The applicant concurred with the PEB findings.

On 28 October 1999, the USAPDA published a revision to the PEB proceedings, which modified the PEB findings, ratings, and disposition.  These revised findings indicated that there was no substantial evidence to show the applicant was unfit , because of medical impairment that is ratable under the law.  The USAPDA cited the OER’s received by the applicant prior to his misconduct, which rated him high, and also commented on the fact that the first OER he received, subsequent to his improper relationship with a subordinate officer being discovered, indicated that he was the best operations officer in the brigade.  The USAPDA also indicated that it was only after the applicant’s request to resign was accepted that the theory that his misconduct was the result of his suffering from a PTSD.  They finally indicated that the applicant’s conduct prior the incidents of misconduct was excellent and there was not a hint that PTSD was impacting his ability to serve prior to that time.  The applicant non-concurred with these findings.

On 5 November 1999, the Office of the Surgeon General of the Army approved the second of the applicant’s three medical extensions to be held beyond his approved separation date.  This second extension was for an additional 3 months beyond his established 12 July 1999 separation date, until the MEB/PEB process was complete, or until fit for separation, whichever came first.

On 16 December 1999, a case analysis was prepared, by a medical staff officer of the Army Review Board Agency, based on the applicant’s appeal of the decision rendered by the USAPDA.  In this analysis, the examiner found that the applicant’s statements on appeal did not present new or substantive medical evidence to refute the findings of the USAPDA.  

On 11 January 2000, the Office of the Surgeon General of the Army approved the last of the applicant’s three medical extensions to be held beyond his approved separation date.  This third extension was for an 3 additional months beyond his established 12 July 1999 separation date, until the MEB/PEB process was complete, or until fit for separation, whichever came first.

On 2 February 2000, the Army Physical Disability Appeal Board (APDAB) convened to consider the applicant’s case.  The APDAB found that the applicant was physically fit with a disposition of return to duty as fit.  The APDAB concluded that the applicant received a full and fair hearing and the evaluation proceedings conformed to current law and regulations.  

On 9 February 2000, the Chief of the Separations Branch at PERSCOM revoked the applicant’s separation; thereby eliminating his pending separation status, and eliminating the need for continuing medical extensions to retain him on active duty and removed any pending separation status the applicant held at that time.

On 29 February 2000, the findings and recommendations of the USAPDA were approved by the Chief of the Physical Disability Branch of the Army Personnel Command (PERSCOM).  This approval indicated that the applicant was found physically fit to perform the duties of his grade, rank, and military occupational specialty, and that he was deployable within the limitations of his profile.  Finally, this approval indicates that if the applicant was scheduled for separation or retirement for reasons other than physical disability, that separation or retirement action may continue; and if not scheduled for separation, he should be returned to duty. 

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of chapter 61, title 10, United States Code (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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. 

Paragraph 3-1 (standards of unfitness because of physical disability) states, in pertinent part, that the mere presence of an 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 soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 

Paragraph 3-2b (processing for separation or retirement from active service) states that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Paragraph 3-2b(2) states that when a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  In addition, it indicates that the soldier had to be, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. 

Paragraph 4-22 provides for review of PEB determinations by the USAPDA.  In paragraph 4-22b (purpose of review) it states that the review will be confined to the case records and proceedings and related evidence.  The review will ensure that the soldier received a full and fair hearing; that the proceedings of the MEB and the PEB were conducted according to governing regulations; and that the findings and recommendations of the MEB and PEB were just, equitable, consistent with the facts, and in keeping with the provisions of law and regulations. 

Paragraph 4-22d (revised findings) provides for the issue of revised findings by the USAPDA.  It states that the USAPDA will take the following actions when modifying PEB findings and recommendations:  furnish the soldier a copy of the revision by certified mail, return receipt requested; include in the letter of transmittal the reason for the change; and provide information copies of the proceedings to the PEB liaison officer and to the soldier's counsel. 

Paragraph 4-25 (the APDAB) contains guidance on the role of the APDAB.  The APDAB is a component of the Army Council of Review Boards.  It reviews cases forwarded by the CG,USAPDA as provided in paragraph 4-22f(2) above.  The APDAB will determine if the soldier received a full and fair hearing; if the evaluation proceedings conformed to current laws and governing regulations; and if the findings and recommendations of the PEB, as changed or modified by the USAPDA are supported by the evidence. 

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.  After carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board concluded that relief is not warranted in this case.  The Board concurred with the findings of the APDAB that the applicant received a full and fair hearing and the evaluation proceedings conformed to current law and regulations.  

2.  The Board noted the applicant’s contention that the USAPDA erred in its review of his case by applying the “presumption of fitness” rule.  However, the Board found that the USAPDA determination, in the applicant’s case, conformed to the regulatory guidance, which states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

3.  The regulatory guidance pertaining to the standards of unfitness because of physical disability states, in pertinent part, that 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 his or her office, grade, rank, or rating.  The comments contained in the change of duty OER received by the applicant, that he was the best operations officer in the brigade, along with other performance related documents in the record, supports the USAPDA finding that he was more than capable of performing the duties of his office, grade, rank, or rating, as required by regulation.

4.  The Board found the evidence and logic used by the USAPDA in applying the regulatory standards of unfitness to the applicant’s case was very credible.  It clearly demonstrated the that the applicant was fit for duty, notwithstanding, the diagnosis that he suffered from PTSD.  Therefore, the Board concurred with the USAPDA finding that there was no substantial evidence to show that the applicant was unfit for duty because of medical impairment that is ratable under the law.

5.  The Board also noted the applicant’s claims that limited use evidence rules were violated in his case.  However, there is no evidence to show that the government used limited use information to support the NJP action administered to the applicant.  The Board concluded that the offenses for which NJP was administered to the applicant were substantiated without relying on limited use evidence.  There is no evidence of record to suggest that information used in the NJP process was obtained as a result of the applicant’s enrollment in the ADAPCP.  

6.  The applicant’s claim that labeling his inappropriate relationship as misconduct was improper, because although not conducive to military discipline, his actions were not illegal, has no merit.  The inappropriate relationship was clearly listed in the NJP action as a violation of Article 92 of the UCMJ.  This clearly established and codified the applicant’s behavior as misconduct.  Further, in the opinion of the Board, the applicant’s acceptance of the NJP and his election not to appeal the punishment imposed, provides a clear indication that he himself accepted the fact that his behavior constituted misconduct. 

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

8.  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

__eja___  ___vbc__  ___jph___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000039664	
SUFFIX		
RECON		
DATE BOARDED	2000/04/19	
TYPE OF DISCHARGE	N/A 	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  269	124.0000	
2.		
3.		
4.		
5.		
6.