BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160002657 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: 1 June 2017 DOCKET NUMBER: AR20160002657 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: 1 June 2017 DOCKET NUMBER: AR20160002657 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 correction of his character of service and narrative reason for discharge from "under honorable conditions (general) - pattern of misconduct" to "honorable, medical." He also requests a personal hearing. 2. The applicant states a. He has presented evidence from medical personnel who told him he was starting the medical board process either by profile or fit for duty panel. He told his command that he started the medical board process because he did not have the luxury of being able to call the high ranking brigade surgeon up and get clarification of what it exactly means, such as needing a memorandum that states specific statements. He tried to get the medical personnel who told him that he was starting the medical board such as Dr. Se--- and Captain (CPT) T. A. Bu--- but they failed to submit comments to support their notes entered to the medical system that showed print outs of his command but they would not comply. He further checked up on that process by calling in to get confirmation on the process due to lack of updates that he was getting to submit to Sergeant First Class (SFC) AP. He is being accused of knowingly misleading his superiors about the medical board process that is totally false and any misinterpretation of his primary care manager or doctor's updates did not warrant a bitter SFC's reprisal against him because of prior Inspector General (IG) complaints that he made against him. But, he did not knowingly mislead anyone about his medical board process. b. He made multiple complaints against SFC AP and Master Sergeant (MSG) ML and asked the Fort Riley IG office to remove him from his unit or to another base but they failed to comply. The resulting months afterward were torture for him by toxic leaders furious for revenge who plotted to watch his every action to write multiple frivolous counselings against him. He would like his entire chain of command investigated for failure to protect him against reprisal and he would like SFC AP and MSG ML investigated for reprisal. c. Medication refills, bio samples, and telephone consults were regularly criticized for going to these much needed visits to the clinic or hospital which are for his diagnosed conditions but do not generate appointments. He felt he was constantly forced to give up medical information to Colonel (COL) RAL, Commander, 1st Sustainment Brigade, 1st Infantry Division, Fort Riley, which was truly embarrassing and demeaning, while other non-medical personnel were in the room such as Command Sergeant Major (CSM) TO, CPT LLK, First Sergeant (1SG) Ba--, MSG ML, and SFC AP. He volunteered some medical information necessary to beat the bogus frivolous charges against him. He was asked by COL RAL to give up medical information that he did not volunteer to give up in front of the previously stated Noncommissioned Officers (NCOs) and officers listed above. d. Furthermore, many of these diagnosed conditions had been diagnosed years before he had even gotten to the 1st Infantry Division at Fort Riley, but the medical personnel who saw him at Fort Riley told him that they could not see all of his information from the last 13 1/2 years of his military career or they outright did not do the proper research before they saw him for medical care. He names one person in particular. In 2004, Dr. ACS accused him of lies when he complained about stomach pains but he told him how while in Iraq in 2003 he suffered chemical pneumonia due to a fuel accident and was hospitalized for two weeks. For some odd reason that part of the conversation was left out of his unprofessional notes which has plagued his entire health care since then. He was gracious enough to give him a referral to the email. e. On 14 May 2015, during his second Article 15 reading COL RAL ordered him to give him his medical records and would not give them back until the extended session on 18 May 2015. He never gave him permission to take his records, which is a clear violation of HIPAA and his signed understanding and agreement with the Army health care system Privacy Act of 1974. He never signed anything authorizing his command to view any of his medical information. He never explicitly gave COL RAL permission to take his records, but gave him his records after he ordered him to when he said, "Let me see those," when he (the applicant) attempted to read the notes only to him. There were some records that were already given to COL RAL that selectively made their case stronger against him that he never signed a Privacy Act of 1974 statement to give to him or anyone in the command. After he got his punishment, he was reduced to sergeant (SGT)/E-5 with 45 days of extra duty. As he walked out of the office, he heard CPT K say, "You know he is going to file an IG complaint?" Directly after that, he heard COL RAL say "I'm ready for him, in fact shred all that." He was given back his medical records but he does not know what happened to all of the statements about his medical wellbeing from various medical providers such as Nurse Case Manager (TO) at Farley Clinic - Primary Care Manager - Lieutenant Colonel M, CPT TB, or others in his command. f. It is his belief that the case against him was orchestrated by his NCO leadership at the 1st Infantry Division Public Affairs shop because of the IG complaints that he filed against them. Furthermore, his case was not properly considered against him with an unbiased opinion. He never received a copy of end results of the evidence against him and the actual Article15 paperwork. He prays that it is not because there was a deliberate cover up of unlawfully obtained evidence against him. It is his belief that MSG ML and SFC AP reprised against him after he filed multiple IG complaints against him and initiated this entire process. Upon returning from Iraq, SFC AP watched him the best he could to gather whatever evidence against him for frivolous charges such as malingering, dereliction of duty, making false official statements. g. The corrupt medical system at Fort Riley is widely known throughout the Army because they make Soldiers like him with well-established diagnoses from other bases go through the same almost re-victimization process of being accused of nothing being wrong with him only to find out that there is something genuinely wrong with him. It is costly to the government and the American tax dollars. He is a Soldier stuck in the military reproving his mental and physical injuries over and over again to a bunch of diabolical compartmentalized bureaucrats instead of working with caring doctors who have access to his total medical profile. Being general, his much needed appointments are here: checkups, blood tests, physical therapy, testing, medication refills for his many diagnosis, walk ins for post-traumatic stress disorder (PTSD), ADHD, depression, all are valid reasons to see his physicians and he was exercising his right to do so. He hopes that there aren't any medical determinations that these aren't valid reasons for appointments. h. His profiles are there. LTC M and MAJ K who wrote those profiles because they took the time to thoroughly evaluate him and his record unlike MAJ B. He has gone without a shoulder profile because he is not combat arms and he was rarely in his gear for almost a year. He was never directed to go back and get a profile for it by MAJ K. The reason he chose to go back and seek the permanent profile for his left shoulder is because he did some type of training exercise and re-injured it. He was asked to receive a permanent profile by MAJ K before, when he first came from Hawaii after being on profile for it for a while and he did not know there was a time limit on it. He was told of the proper process to start over and he is currently following it. Recently, he did a nerve conduction test on his left arm by an actual doctor of neurology which yielded the same neuropathy results as in Hawaii. He will also be visiting CPT B this month to extend his shoulder profile. i. CPT B has given him medications for his diagnosed conditions. MAJ B has also offered him a permanent profile but he told him no when he first got here because he wanted to tough it out, after suffering for about a year. He stated in a sworn statement that he basically had virtually nothing wrong with him (the applicant) and something close to "he was making it up," which is completely false. If his duties of being a Public Affairs NCO were neglected to the point of dereliction of his duties, he would like to see evidence of multi systemic public affairs failures with the public and or Soldiers of the 1st Infantry Division. He was shown not a counseling outlining his duties while his shop was gone but an email that only showed his duties as a Public Affairs NCO In Charge of the 1st Infantry Division which did not include writing stories. MSG ML provided an NCO Evaluation Report (NCOER) that was for his general duties but did not outline his altered duties that SFC AP gave him in the email. j. To compound things, the military is asking him to perform extra duties after regular work hours even though they knew he was a single father with no family care plan for his two kids. For instance, starting yesterday, he pulled a 24-hour shift and will come back in today to work at 1800 – late night hours that he cannot remember at this time due to his many concussions. He would like to be compensated for lost wages of his enlistment contract from his discharge of 13 July 2015 to 30 September 2016. He has many diagnosed medical conditions by the Army that should have granted him a medical discharge. He would like to be compensated for all the benefits lost from a medical discharge that he should have received immediately. He did not consent to any of the proceedings to discharge him. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * A CD that contains his medical records * Statements * Department of Veterans Affairs (VA) rating decision CONSIDERATION OF EVIDENCE: 1. Having had prior active duty service (March 2000 to November 2004), the applicant enlisted in the Regular Army on 24 August 2006 and he held military occupational specialty 46Q (Journalist). 2. He served through extensions or reenlistments, in a variety of assignments, including Afghanistan from 7 November 2009 to 15 June 2010. He was promoted to staff sergeant (SSG)/E-6 on 1 November 2010. 3. He was assigned to Division Headquarters and Headquarters Company, (DHHB), 1st Infantry Division, Fort Riley, KS. 4. On 18 February 2015, following an informal investigation into allegations that the applicant malingered in the face of possible deployment, an investigating officer (IO) made the following findings/recommendation: a. The IO found the preponderance of credible evidence did indicate that the applicant did malinger and that he did make false statements to superiors. He claimed to have a Medical Evaluation Board (MEB) in progress to medical providers at the Soldier Readiness Program (SRP) site on 1 October 2014 during his pre­deployment SRP screening. This MEB was still not in progress and had been sent back for further review before it was started. Since the 1 October screening, the applicant had been telling his supervisor, SFC AP, that he had appointments to attend that caused him to miss duty, these appointments had either been for the MEB not in progress or had not been appointments at all. Rather, they were occasions where he either called into Farrelly [Clinic] or simply walked in. b. In light of the above findings, the IO recommended that the chain of command pursue a Field Grade Article 15 for the false official statements made and pursue separation action for malingering. 5. On 27 February 2015, the 1st Sustainment Brigade Judge Advocate reviewed the informal investigation and found it legally sufficient. The allegations of malingering were substantiated. 6. On 14 May 2015, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being derelict in the performance of his duties, making a false official statement on five occasions (at least 5 occasions), and feigning multiple health issues for the purpose of avoiding duty. 7. His punishment consisted of a reduction to sergeant (SGT)/E-5, a forfeiture of $1,562.00 pay per months for 2 months (suspended), and extra duty for 45 days. He was advised of his right to appeal but he elected not to do so. 8. On 4 June 2015, the applicant's immediate commander notified the applicant of her intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) for misconduct – pattern of misconduct. She (the commander) cited the applicant's repeated acts of misconduct including making a false official statements and feigning multiple health-related issues to avoid duty as an enlisted Soldier. She recommended an under other than honorable conditions characterization of service. 9. On 4 June 2015, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He requested consideration of his case by an administrative separation board and personal appearance before such board. He elected to submit a statement in his own behalf (consisting of a conditional waiver). The conditional waiver stated that he would waive consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less than general, under honorable conditions. He 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 10. On 5 June 2015, 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 (general) discharge. 11. On 23 June 2015, following a legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's separation and directed he be discharged under honorable conditions (general). Accordingly, the applicant was discharged on 14 July 2015. 12. The DD Form 214 he was issued for this period of service 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 8 years, 10 months, and 21 days of net active service. It also 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 13. The applicant has not petitioned the Army Discharge Review Board for a review of his administrative discharge processing. 14. He provides a CD consisting of his medical records, together with his VA rating decision. His medical evidence was forwarded to the Army Review Boards Agency senior medical advisor for review. The senior medical advisor rendered an advisory opinion on 20 October 2016. He thoroughly reviewed the electronic records, the VA medical records and other documents provided by the applicant. Based on that review, the senior medical advisor opined: a. The applicant met medical retention standards for PTSD, depression, ADHD, insomnia, headaches, urinary incontinence, irritable bowel syndrome, GERD, hiatal hernia, tinnitus, allergic rhinitis, right ankle pain, valvular heart disease (bicuspid valve), hypertension, dry eyes with photosensitivity, and other miscellaneous medical/behavioral health diagnoses In accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. b. The applicant's medical conditions were duly considered during medical separation processing. There is no clear nexus between the applicant's behavioral health conditions/diagnoses and the pattern of misconduct (malingering) for which the applicant was separated. The applicant's VA problem listed diagnosis obstructive sleep apnea (unclear how diagnosis made or severity, if treatment required), Gilbert's syndrome (unclear how diagnosis made), and other listed medical conditions do not explain or mitigate the pattern of misconduct (malingering) for which the applicant was separated. There is evidence of a clear pattern of malingering documented during the applicant's first period of enlistment. c. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. This applicant's history between 2004 and 2015 during his Army service suggests that this pattern of behavior (medical condition and disability seeking) may reappear or continue with his transition to the Department of Veterans Affairs. 15. On 22 October 2016, the applicant was provided with a copy of this advisory opinion. He did not respond within the allotted time. REFERENCE: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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. b. Paragraph 3-7a states 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 member’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. e. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 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 and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired. b. 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. 3. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an 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 Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. 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. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. The Military Whistleblower Protection Act, Title 10 U.S.C. 1034, as amended, prohibits interference with a military member’s right to make protected communications to members of Congress; Inspectors General; members of Department of Defense (DOD) audit, inspection, investigation or law enforcement organizations; and other persons or organizations (including the chain of command) designated by regulation or administrative procedures.  A protected communication is any lawful communication to a Member of Congress or an IG, as well as any communication made to a person or organization designated under competent regulations to receive such communications, which a member of the Armed Services reasonably believes reports a violation of law or regulation (including sexual harassment, unlawful discrimination, mismanagement, a gross waste of funds or other resources, abuse of authority, or a substantial or specific danger to public health or safety). 7. DOD Directive 7050.6 updates the policy and responsibilities for military whistleblower protection under 10 U.S. Code, section 1034. It states, in pertinent part, that it is DOD policy that members of the Armed Forces shall be free to make a protected communication and/or free from reprisal for making or preparing to make a protected communication. It further states that no person may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing to make a protected communication. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The available evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards of military conduct required of enlisted personnel because of his continued misconduct, evidenced by making false official statements and feigning illness to avoid duty as an enlisted Soldier. Accordingly, his immediate commander initiated separation action against him and it was approved by his superior commander. 3. His 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 and the reason for separation were appropriate considering all the facts of the case. 4. Should the applicant believe his administrative discharge was improper or inequitable, he may be eligible to apply to the Army Discharge Review Board (ADRB) for review, in accordance with Title 10, U.S. Code, section 1553 and AR 15-180 (ADRB). It is noted that the ADRB does not address medical issues. 5. There is no evidence in the records and the applicant failed to provide any evidence showing he had any medical condition that was incurred while entitled to receive basic pay and was so severe as to render him medically unfit for retention on active duty or unable to perform the duties required of his former grade and military specialty. Without a diagnosed medical condition that fails retention standards and/or the existence of a medically unfitting condition at the time of his discharge, there is no basis for a medical separation. 6. The medical review in his case confirmed that his medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for his discharge. The medical review further confirmed that based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the vast majority of his many disciplinary infractions and associated problems. The applicant met medical retention standards at the time of his separation. 7. The applicant raises the issue of reprisal and stated "it is his belief that MSG ML and SFC AP reprised against him after he filed multiple IG complaints against him and initiated this entire process." Reprisal issues under the Whistleblower Protection Act are addressed to the DOD IG. There are statutory timelines to request an investigation based on reprisal submitted by military members. 8. The applicant also raises the issue of investigating his chain of command and states "I would like my entire chain of command investigated for failure to protect me against reprisal and he would like SFC AP and MSG ML investigated for reprisal." The ABCMR corrects military records and decides cases based on the evidence of record. It is not an investigative agency. Investigations are conducted by law enforcement officials such as military police, U.S. Army Criminal Investigation Command, or Naval Criminal Investigative Service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002657 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002657 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2