BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015298 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015298 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. ______________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. BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015298 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 in effect, correction of the narrative reason for his separation from misconduct to medical and an upgrade of his general, under honorable conditions discharge to an honorable discharge. 2. The applicant states: a. After his bloodwork revealed low returns associated with his thyroid, he was separated from his unit and transferred to the 3rd Infantry Division to start a medical board. His unit then underwent a change of command and his new commander changed his chapter to lighten his load of paperwork. The new commander told him he was looking at 2 weeks verses 3 months to reach his expiration term of service (ETS) because a medical board was unwarranted. b. When he met with the Post Commander to sign his chapter paperwork, he expressed to him that his attorney was unavailable, he was not well, and he was under heavy narcotics due to a neck injury. He expressed that he was not doing well and was heavily medicated due to a neck injury, and that he did not believe himself capable of making decisions. The proceedings continued despite his plea. c. He has been under duress due to the legality of the only medication found to be effective in restoring lost bodily functions. He is suffering emotionally and physically from numerous traumatic experiences. He has had no family support structure since he was kicked out of the Army for misconduct. He has no job and no benefits. His quality of life could be improved if his discharge were upgraded. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Polysomnography Report * Patient Lab Inquiry printout * Radiology Report * Request for Mental Health Evaluation 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 Army Board for Correction of Military Records (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 this case 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 for timely filing. 2. The applicant enlisted in the Regular Army on 29 September 2004. He was trained in and awarded military occupational specialty 15T (Helicopter Repairer). He served in Kuwait/Iraq from 31 August 2005 to 11 November 2005. 3. He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 5 January 2006, failing to go at the time prescribed to his appointed place of duty on four separate occasions; his punishment consisted of reduction to E-2, suspended forfeiture of pay, and extra duty and restriction * 27 January 2006, the suspended punishment was vacated and ordered executed after he again failed to be at his appointed place of duty * 1 March 2006, wrongfully disobeying a lawful order not to leave Hunter Army Air Field without an escort; his punishment consisted of reduction to E-1, forfeiture of pay, and extra duty and restriction * 30 August 2006, failing to go at the time prescribed to his appointed place of duty on four separate occasions; his punishment consisted of suspended reduction to E-1, suspended forfeiture of pay, and extra duty and restriction * 16 March 2007, being absent without leave from 18 to 19 December 2007, failing to go at the time prescribed to his appointed place of duty on four separate occasions, being disrespectful towards a noncommissioned officer, and being incapacitated due to his overindulgence in intoxicating liquor; his punishment consisted of reduction to E-1, extra duty, and restriction 4. The applicant’s record contains numerous DA Forms 4856 (Developmental Counseling Form) showing he was counseled on multiple occasions for failure to repair, failure to report for work call, driving without a driver's license, lack of military identification, and disobeying orders, among other minor disciplinary infractions. He was counseled that his continued misconduct could lead to an administrative separation. The applicant acknowledged each of his counseling statements with his signature. 5. On 26 March 2007, the applicant underwent a medical examination. A medical doctor determined he was not qualified for service in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-36 (adjustment disorders). He provided a summary of defects and diagnoses: * personality disorder * chronic back pain * right shoulder pain * low thyroid stimulating hormone * neck pain * chronic bilateral knee pain The medical doctor assigned a physical and stamina profile of all "1s" with no profile restrictions. 6. On 9 April 2007, the applicant underwent a command-referred mental status evaluation and the results showed he demonstrated: a. Normal behavior and thought content, full alertness and orientation, unremarkable mood or affect, a clear thinking process, and good memory. He had the mental capacity to understand and participate in separation proceedings and he was mentally responsible. His diagnoses were as follows: * Axis I – Alcohol Related Disorder * Axis II – Personality Disorder, Not Otherwise Specified (NOS) b. The evaluation consisted of a clinical interview, review of available records, and command consultation. The applicant understood that he was being chaptered and he was not currently suicidal or homicidal. However, he demonstrated poor coping skills in response to stressors. He appeared to have a longstanding history of maladaptive behaviors and emotional responses that significantly impaired his ability to effectively and consistently perform his military duties. These include impulsivity, self-injurious behavior (e.g., cutting), affective instability, and a chaotic personal life. He was not likely to be amenable to any coercion or retraining. It was unlikely that efforts to rehabilitate or develop him into a satisfactory member of the military would be successful. Retention of such emotionally and behaviorally disturbed Soldiers puts them a high risk to continue to engage in behaviors for which psychiatric hospitalization and UCMJ may become necessary. He could continue to receive care at Tuttle Behavioral Health as needed throughout his chapter process. c. The applicant met the retention standards prescribed in AR 40-501 and there was no psychiatric disease or defect that warranted disposition through medical channels. He was cleared for any administrative actions deemed appropriate by command. 7. On 8 May 2007, the applicant's commander informed him of his intent to separate him under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for patterns of misconduct. The commander cited the applicant's multiple violations of the UCMJ, including failing to follow orders, failing to be at his appointed place of duty, being absent without leave, and being disrespectful. The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board (if he had accrued 6 or more years of active or Reserve service), to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit a request for a conditional waiver of any rights. The commander recommended a general discharge. 8. On 8 May 2007, the applicant consulted with legal counsel. After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he indicated his understanding that he was not entitled to consideration of his case by an administrative separation board because he had less than 6 years of service and was not being considered for an under other than honorable discharge. He elected not to submit a statement on his own behalf and further acknowledged: * he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he understood that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws 9. On 10 May 2007, and subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200 for misconduct – pattern of misconduct. His chain of command recommended approval with the issuance of an under honorable conditions discharge. 10. Consistent with the chain of command's recommendations, the separation authority approved the applicant's separation and directed he be discharged under other than honorable conditions. Accordingly, the applicant was discharged on 22 May 2007. 11. The DD Form 214 he was issued confirms he was discharged under the provisions of AR 635-200, chapter 14, by reason of misconduct with his service characterized as under honorable conditions (general). This form further confirms he completed a total of 2 years, 7 months, and 24 days of net active service. It shows in: * Item 25 (Separation Authority), AR 635-200, paragraph 14-12b * Item 26 (Separation Code), JKA * Item 27 (Reentry Code), 3 * Item 28 (Narrative Reason for Separation), pattern of misconduct 12. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. He provides a polysomnography report, patient lab inquiry printout, radiology report, and a mental health evaluation. The Army Review Boards Agency (ARBA) forwarded his case to the Office of The Surgeon General (OTSG) for review. An OTSG official reviewed his case and rendered an advisory opinion on 30 June 2016. He stated a detailed review was conducted of the records provided as well as the applicant's electronic medical record (AHLTA). The official opined that the applicant met medical retention standards per AR 40-501; therefore, a medical evaluation board (MEB) was not warranted. a. Per AHLTA, the applicant was seen on 31 March 2005 and diagnosed with reflex sympathetic dystrophy of the upper limb elbow. The condition was treated with indomethacin and he received a 10 day profile for no pushups. He had no further visits for symptoms or evidence of impairment of military performance related to this diagnosis. This condition does not fail medical retention standards in accordance with AR 40-501. b. He was seen by Primary Care in January 2006 for sleep issues. He had comprehensive lab work including assessment of his thyroid stimulating hormone (TSH) which was low. He had it repeated and the repeat TSH was also low and he was referred to Endocrinology for further evaluation. He was seen on 5 April 2007. Endocrinology ordered repeat thyroid studies and treatment options were reviewed with the applicant. Endocrinology noted the applicant's low risk for cancer and thus a biopsy was not needed at the time since a nodule was less than one centimeter. He was released without limitations at this visit. This condition does not fail medical retention standards in accordance with AR 40-501. c. On 4 January 2006, the applicant presented himself to Primary Care prior to an Article 15 for problems with sleep. Per this encounter, it was unknown if he had a true sleep disorder or a secondary symptom of adjustment. At this visit, a comprehensive physical examination revealed a healthy 20 year old. Labs were ordered and pending lab results, a Behavioral Health consult would be considered. He was referred to Behavioral Health for sleep symptoms along with anxiety on 7 September 2006. A repeat TSH was ordered as a low TSH was noted on the applicant's recent lab work. He saw Primary Care on 11 September 2006 and a sleep study was ordered which showed hypersomnolism that fell within the gray zone per this report and clinical correlation was indicated. He saw Behavioral Health for sleep symptoms on 14 November 2006 and was prescribed Trazadone. He was seen by Behavioral Health on 9 March 2007, and per this encounter, he reported sleeping okay. This condition does not fail medical retention standards in accordance with AR 40-501. d. He was seen on 2 August 2006 for right hip sprain. Per this AHLTA encounter, he had a full range of motion and strain suspected since symptoms were improving. He was given a profile for 4 days and extra thigh/hip stretches were recommended. He was instructed to return to the clinic if symptoms returned. No further visits for these symptoms were found in AHLTA or evidence of impairment of military performance. This condition does not fail medical retention standards in accordance with AR 40-501. e. He was seen for a 1 month history of bilateral knee pain on 11 October 2006. He was prescribed Piroxicam, and proper running shoes and arch supports were discussed. He was released without limitations from this visit. He was seen for symptoms again on 12 December 2006 with normal x-rays and an unremarkable exam. No treatment given at this visit and he was released without limitations. He had no further visits for symptoms or evidence of impairment of military performance. This condition also does not fail medical retention standards in accordance with AR 40-501. f. He saw Behavioral Health and per AHLTA records was treated for anxiety disorder NOS, sleep disorder, adjustment disorder with prolonged depressed mood, attention deficit disorder, and personality disorder. His Behavioral Health note, dated 9 April 2007, shows he met retention standards. g. He complained of low back pain at a visit with Primary Care on 12 December 2006, which occurred on leave while picking up an infant. No treatment was prescribed at this visit. No further visits for symptoms or evidence of impairment of military performance were found in AHLTA. This condition does not fail medical retention standards in accordance with AR 40-501. h. He was treated by the Substance Abuse Clinic for alcohol use in January 2007. This condition does not fail medical retention standards in accordance with AR 40-501. i. He presented himself to Primary Care on 15 March 2007 with neck pain for the past 4 hours and was diagnosed with neck strain. He followed up on 23 March 2007 and per this AHLTA encounter, symptoms were improving. He was encouraged to continue stretching exercises and given a 1 week profile. No further visits for symptoms or evidence of impairment of military performance. This condition does not fail medical retention standards in accordance with AR 40-501. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments and/or a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-33(a) provides for disposition through medical channels. It states that except in separation actions under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing. When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 (see section IV), or 14, does not meet the medical fitness standards for retention he/she will refer the Soldier to an MEB in accordance with AR 40-400 (Patient Administration). The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB. b. Chapter 14 establishes policy and prescribes procedures for separating Soldiers 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. The regulation specifies that action will be taken to separate a Soldier for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The separation authority may issue an honorable discharge or a general, under honorable conditions discharge if warranted by the overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for Soldiers separated under these provisions of the regulation. c. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 2. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Paragraph 3-36 states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. A decision is made as to the Soldier's medical qualification for retention based on the criteria in AR 40-501, chapter 3. a. 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/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 that service member can be medically separated or retired. b. The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered. An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness. A profile containing one or more numerical designations of 3 signifies the individual has one or more medical conditions that may require significant limitations. A permanent profile of 3 or 4 may require referral to the disability system. c. 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. 4. AR 15-180 (Army Discharge Review Board) implements Title 1, U.S. Code, section 1553; Public Law 92-126; and Department of Defense Directive 1322.38 (Discharge Review Board Procedures and Standards). The discharge review is the process by which the reason for separation, the procedures followed in accomplishing separation and the characterization of service are evaluated. The Discharge Review Board statute of limitations is 15 years from the date of separation. (Normally, this Board does not have jurisdiction concerning medical separations or medical retirements.) DISCUSSION: 1. The applicant exhibited a pattern of misconduct as evidenced by his multiple instances of NJP, negative counseling, and non-response to counseling. Accordingly, his chain of command initiated separation action against him for his pattern of misconduct under the provisions of chapter 14 of AR 635-200. He was advised of and exercised his rights. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was accordingly discharged under the provisions of chapter 14 of AR 635-200 due to this misconduct. 3. His narrative reason was assigned based on the fact that he was discharged under the provisions of chapter 14 of AR 635-200 for a pattern of misconduct. Absent the misconduct, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his pattern of misconduct and the only narrative reason authorized in his case is misconduct which is appropriately indicated on his DD Form 214. 4. All his medical conditions were reviewed but none were found to have failed medical retention standards. In order to refer a Soldier to an MEB, the medical condition must fail retention standards. While the medical doctor who conducted his physical examination prior to his administrative separation indicated the applicant was not fully qualified for adjustment disorders, he did not indicate when he issued the applicant’s physical profile a rating of a "3" which would have required referral to an MEB. By regulation an adjustment disorder does not render a Soldier unfit and referral to an MEB. This diagnosis can be used to administratively separate a Soldier. A behavioral health examiner determined the applicant did not have any mental or behavioral health conditions that required referral to an MEB. Upon further review, separate medical staff rendered an advisory opinion wherein no medical or behavioral health condition was found that warranted entry into the disability evaluation system. 5. As there is no medical requirement for the applicant to enter the physical disability evaluation system based on findings of medical unfitness, there is no regulatory basis for changing the narrative reason for his discharge to a medical separation. 6. As for the characterization of service, the applicant was discharged in May 2007. By law, he is authorized to petition the Army Discharge Review Board for a review of his administrative discharge processing (i.e., propriety and equity of the discharge action) within 15 years of his separation date. He has not done so. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015298 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015298 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2