ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 March 2021 DOCKET NUMBER: AR20200002092 APPLICANT REQUESTS: correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 May 2008 to show he was medically separated, medically retired or upgrade his discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of support from Mr. Bxxxx * Letter of support from Master Sergeant (MSG) S, Retired * Civilian medical records – New Mexico Center for Clinical and Behavioral Sleep Medicine FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states after encouragement from his wife he underwent a sleep study years after his discharge because he frequently stopped breathing at night. His diagnosis of sleep apnea connects to his period of service when he sought medical treatment because he was exhausted and had difficulty sleeping. The only treatment he received for his sleep problems was Benadryl and he would have to report back to his unit. He personally requested a sleep study, but a medical provider denied his request. He provides two letters from his squad leader and platoon leader attesting to his sleep problems. He now knows if he had been properly diagnosed while in service, he would have been medically separated or retired instead of receiving an under honorable conditions (general) characterization of service.. 3. On 29 March 2006 the applicant enlisted in the Regular Army for a period of 4 years and 32 weeks. During the enlistment process he underwent a medical examination and he was found qualified to enter military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) without medical waivers. 4. The applicant’s history of accepting nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) follows: * on 9 December 2007, for twice failing to go to his appointed place of duty; his punishment included reduction in rank to private/pay grade E-2 * on 25 March 2008, for failure to go to his appointed place of duty on one occasion; his punishment included reduction to private/pay grade E-1 5. Prior to his 25 March 2008 NJP, the applicant was counseled by his first sergeant who informed him his commander was considering initiating separation action under the provisions of paragraph 14-12b, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for his patterns of misconduct. During the counseling the applicant was told he could receive an honorable discharge, a general discharge (under honorable conditions) or an under other than honorable conditions discharge. He was told he could be ineligible for post-service benefits depending upon the type of discharge he received. Further, he was told if he received a general discharge (under honorable conditions) he would be disqualified from reenlisting in the service for a period of time or ineligible to reenlist. The applicant acknowledged he received this counseling. 6. Prior to undergoing a separation physical examination, the applicant completed an electronic Health Assessment Review Tool (HART) Patient Report. The HART questionnaire is used to improve the quality of health care provided to Soldiers and as a tool for a Soldier to communicate with their health care provider. After completing the questionnaire, the applicant was advised to quit using tobacco, follow acceptable safety standards for bike riding and sports, and he should wear protective clothing and equipment including use of ear protection. The questionnaire results further advised him to make an appointment with behavioral health concerning his feelings of nervousness and anxiety. As he identified he was having problems sleeping it was recommended he contact his primary care provider for consultation. The HART report concluded by informing the applicant that based on certain risk factors he self-reported, he was considered a low risk for needing or requiring health care services within the next year. 7. On 27 March 2008 he underwent a physical examination with minor deficiencies noted on his DD Form 2808 (Report of Medical Examination) with no annotations showing he was having difficulties with his sleeping patterns. Upon conclusion of the medical examination, it was noted he met the acceptable standards of medical fitness for continued service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). He had no physical profile restrictions and was qualified for retention or separation from the U.S. Army. 8. The applicant underwent a mental status evaluation by a licensed clinical social worker. During the evaluation it was noted the applicant’s behavior was normal, he was fully alert and oriented to time, space and location. His mood or affect was unremarkable with a clear thinking process and normal thought content. The licensed clinical social worker stated the applicant had no psychiatric diagnosis and there was no evidence of any mental disease or defect, which would warrant a disposition through the disability evaluation system. He cleared the applicant for any administrative action deemed appropriate by his chain of command. 9. By memorandum the applicant’s company commander informed him he was initiating action to separate him from service for his patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b for patterns of misconduct due to his violations of the UCMJ for failing to report for duty twice on 6 November 2007 and once on 6 February 2008. His commander stated he was recommending to the separation authority that the applicant receive a General Discharge Certificate. He also advised the applicant of his rights to consult with counsel, submit statements, obtain copies of all documents, and to waive his rights in writing. He was provided a copy of the memorandum and told he had 7 duty days to make his election and/or submit a rebuttal statement. 10. On 29 April 2008 the applicant consulted with counsel and was advised of the contemplated action to separate him from service prior to his expiration of service date based on his patterns of misconduct. He was advised of the types of discharges he could receive and its effect on his future enlistment or reenlistment, the possible effects of his discharge, and the rights available to him. He indicated he would submit a statement to the separation authority. (His statement is not filed in his record.) He acknowledged he understood: * he could expect to encounter substantial prejudice in civilian life, if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a Veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board or the ABCMR for an upgrade, he understood that an act of consideration by either board did not imply his discharge would be upgraded 11. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to patterns of misconduct in accordance with Army Regulation 635-200, paragraph 14-12b. 12. On 1 May 2008 the separation authority approved the applicant's discharge under the provisions of paragraph 14-12b of Army Regulation 635-200. He directed the applicant receive a service characterization of under honorable conditions and furnished a General Discharge Certificate. He stated by regulation the applicant was not eligible for transfer to the U.S. Army Reserve Individual Ready Reserve. 13. On 6 May 2008 personnel at Fort Bliss, Texas, issued Orders 127-0009 discharging the applicant from the Regular Army, not by reason of physical disability, effective 9 May 2008. 14. Accordingly on 9 May 2008 he was issued a DD Form 214 confirming he was discharged for patterns of misconduct (Separation Code JKA), under the provisions of Army Regulation 635-200, paragraph 14-12b, with his service characterized as under honorable conditions (general). He had completed 2 years, 1 month, and 11 days of net active service this period. There is no record showing he performed combat duty. 15. On or about 26 October 2009, after reviewing his application and evidence of record, the Army Discharge Review Board denied his request to upgrade his discharge stating his discharge was both proper and equitable. 16. The applicant submitted the following evidence for the Board’s review and consideration. a. An unsigned, unsworn and undated typed letter from Mr. Mr. Bxxxx who stated the applicant was a former Soldier in his squad when he served as a squad leader from January 2007 to May 2008. During that period the applicant shared with him that he was having problems sleeping at night resulting in his inability to function in the mornings. He sent the applicant to sick call. He also ensured the applicant was awake and ready for first formation by repeatedly knocking on his door. He often recalls having to forcefully knock on the applicant’s door while hearing alarms going off in his room. There were days when he had to get the first sergeant’s permission to enter the applicant’s room and then he would forcefully shake the applicant to wake him up. He knows the applicant was prescribed medication which added to his state of drowsiness during the workday. He states he also has sleep apnea and receives medical treatment including using a continuous positive airway pressure (CPAP) machine at night. He concludes by stating he still feels frustrated that he could not help the applicant because his unit commander treated the applicant’s sleep problems as disciplinary issues rather than a medical condition. b. MSG S (Retired) provides an unsigned, unsworn and undated typed letter stating he was the applicant’s platoon sergeant during the period from November 2007 to May 2008. He often observed the applicant’s tiredness during the day and knows he had difficulty waking up in the mornings for formation and duty. The applicant’s sleep issues negatively impacted his duty performance which led to multiple counseling sessions both oral and written. He knows the applicant sought medical treatment for his sleep problems, yet there was no solution to his medical condition. The medications the applicant was prescribed did not seem to work. During field training exercises he witnessed the applicant’s sleep difficulties including his snoring and constant waking during the night. During the day he would be extremely tired and his tiredness interfered with his many field duties including guard duty. In retrospect he believes the applicant had serious sleep issues, in effect, that were not resolved by medical service personnel during the applicant’s period of service. c. On 23 May 2017 the applicant underwent a sleep study resulting in a medical doctor preparing a polysomnogram report. The applicant’s specific report shows he was diagnosed with obstructive sleep apnea which was mild to moderately severe apnea hypopnea index of 14 events per hour (Medicare),16 events per hour (American Academy of Sleep Medicine) with his rapid eye movement (RIM) sleep at 80 percent or moderately reduced. His respiratory disturbance (distress) index (RDI) was 20 events per hour leading to arousal from a sleep state at least 20 times during one hour of sleep. A person’s RDI percentage correlates with excessive daytime sleepiness. His medical doctor also provided an analysis when the applicant used a CPAP machine during a subsequent diagnostic test resulting in a prescription for a home CPAP machine. 17. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 18. 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 19. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR in essence requesting a referral to the Disability Evaluation System and an upgrade of his 9 May 2008 discharge characterized as under honorable conditions (general). He states: “I was diagnosed with Sleep Apnea years after my separation at the request of my wife, who has noticed I stopped breathing frequently at night. The diagnosis connects during my time of service due to seeing medical at Fort Bliss over my lack of sleep and waking up exhausted, to which I was always prescribed Benadryl and sent back to my unit. At one point, I had requested a sleep study and was denied by my Doctor. My prior squad leader and platoon sergeant have noticed this and provided letters verifying my case. If diagnosed correctly while in service, it is my understanding that I would have been medically separated/retired or have been given an honorable discharge in service instead of general discharge.” b. The Record of Proceedings and the previous ADRB denial detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period under consideration shows he entered the regular Army on 29 March 2006 and was discharged under honorable conditions (general) on 9 May 2008 under the separation authority provided by paragraph 14-12b(2) of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): “Pattern of Misconduct.” c. The applicant’s previous appeal for a discharge upgrade predicated on the Army’s failure to follow proper procedure was denied in full in October 2009 (AR20090002788). This review will focus on the applicant’s assertion his obstructive sleep apnea (OSA) should have been and should now be referred to the DES. d. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show the applicant was in good health, with no significant medical history or significant medical conditions. e. The applicant’s commander notified him of his initiation of separation action under paragraph 14-12b of AR 635-200 on 27 April 2008. He cites three episodes of failure to report, two of which were on 6 November 2007, with one at 0900 and the second that day at 1410 after a 10 break for a radio class. The third incident was again for failure to report at a 0900 formation. f. The applicant underwent a pre-separation mental status evaluation on17 April 2008 and was found to be without a mental health condition. The provider commented: “There is no evidence of any mental disease or defect, which would warrant a disposition through medical/psychiatric channels. He reports no suicidal or homicidal thoughts at this time. The SM is being chaptered for patterns of misconduct. He is cleared for any administrative action deemed appropriate by command. “ g. His pre-separation Report of Medical History and Report of Medical Examination completed in March 2008 again show the applicant was in good health, with no significant medical history or significant medical conditions. The applicant did not mention sleep issues on the former and the provider made no mention of sleep issues on the latter. h. Two witness statements submitted with the application attests to the applicant’s problems with snoring (noted on FTXs), difficulty sleeping, difficulty being awakened for formation, and daytime sleepiness. His squad leader states the applicant approached him about his problems and that he was directed to go to sick call. Review of AHLTA shows no encounters for sleep related issues. i. The applicant was diagnosed with moderate sleep apnea after undergoing sleep testing on 23 May 2017. A follow-up sleep study performed on 27 June 2017 with the applicant wearing a nose mask for positive airway pressure showed some improvement. j. Paragraph 3-41c(2) of AR 40-501, Standards of Medical Fitness (14 December 2007) states that addresses the requirements for a medical evaluation board for a Soldier with obstructive sleep apnea: “If symptoms of hypersomnolence or snoring cannot be controlled with medical therapy, nasal CPAP, surgery or an oral appliance, the individual should be referred for a MEB. If the use of nasal CPAP or other therapies for sleep apneas result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor, the Soldier should be referred to a MEB.” k. There is no evidence the applicant was so afflicted. While the applicant was diagnosed with OSA 9 years after discharge, there is no evidence this condition would have failed treatment and therefore the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence the applicant had a medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. l. Given the current information, it is the opinion of the Agency Medical Advisor that neither a referral to the DES nor an upgrade of his discharge is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and/or narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 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 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. c. 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. d. 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. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. * SPD JKA is code for Soldiers separating under paragraph 14-12(b) of Army Regulation 635-200 by reason of patterns of misconduct * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il 4. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the Enlisted Record Brief and orders to verify the entries on the DD Form 214. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) published on 8 February 2006 established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 (Policies) stated 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 Soldier reasonably may be expected to perform because of his or her office, rank, grade or rating. All relevant evidence must be considered in evaluating the fitness of the Soldier including but not limited to letter, efficiency reports, or personal testimony. 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 by service. b. Chapter 4 (Procedures) provided guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arose as to the Soldier's ability to perform the duties of his or her office because of physical disability. Commanders of military treatment facilities who treat Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier’s physical ability to perform the duties of their office, grade, rank, or rating. Unit commanders will also refer Soldiers to their military treatment facility for evaluation. The military treatment facility commander will ensure an examination is conducted and their recommendation for the Soldier’s disposition is documented. If it appears the Soldier is not medically qualified, the Soldier will be referred to an MEB. The MEB is responsible for referring Soldiers to the next board, the physical disability evaluation board (PEB). The PEB is an administrative board normally composed of three board members. The PEB makes findings and recommendations including if the Soldier is physical fit for duty, if the disability is permanent in nature, if it meets the legal criteria for compensation and was the disability incurred in the line of duty. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) published on 19 January 2017 prescribes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. b. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. c. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. d. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. e. The physical evaluation board determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. 7. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR under the provisions of Title 10, U.S. Code, section 1552. The ABCMR members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. //NOTHING FOLLOWS//