PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 March 2000                   
	DOCKET NUMBER:   AR1999033884

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

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be reinstated on active duty; promoted to Sergeant First Class (SFC), E-7; receive full back pay and his education benefits; that his security clearance be reinstated; and that he receive his 5th and 6th award of the Army Good Conduct Medal and all other awards he did not receive due to the situation.

3.  The applicant states that in 1990 his car was rear-ended by a drunk driver and he was treated for multiple injuries.  In early 1991, unbeknownst to him he became the subject of a criminal investigation.  He was questioned by agents from the Internal Revenue Service and afterwards he experienced negative treatment.  His sergeant major had him placed on orders to Korea, where his company commander belittled him.  After Korea, he was assigned to Medical Holding Company, Walter Reed Army Medical Center (WRAMC).  The doctor first told him he needed knee surgery and then he could finish his military career. Then the doctor told him he had been ordered not to do the surgery.  He was due to receive his 5th Army Good Conduct Medal during November 1992.  He received it but it was later denied.  On 16 December 1992, he was instructed to report to the orderly room, where two Federal Marshals were waiting to arrest him.  The District Judge was outraged that he was arrested on that date when he did not have to be in Atlanta, GA until 5 January 1993.  He was released on his own recognizance.  The first sergeant tried to stop his medical board.  He demanded and received a formal physical evaluation board (PEB) but it seemed the board had already made a decision prior to the convening of the board.  He was continually harassed.  His trial started on 20 September 1993.  He was found guilty on one count and not guilty on the other count, which was the same as the first count.  He knew he was innocent because he was in Korea during the time this crime was supposed to have taken place.  He was sentenced to 41 months in federal prison plus 36 months supervised release.  He was discharged from the Army 16 February 1994 and began serving his sentence in March 1994. He appealed his conviction and won his appeal.  The Army abused its authority and was prejudiced by his legal problems which were unrelated to the medical criteria to be evaluated by the PEB.  Supporting evidence is as listed on the enclosure to the DD Form 149.

4.  The applicant’s military records show that he enlisted in the Regular Army on 11 November 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 75D (Military Personnel Records Specialist) but was shortly thereafter trained in signal MOSs. He was promoted to Staff Sergeant, E-6 effective 1 September 1983.

5.  The applicant was awarded the Army Good Conduct Medal 4th award for the period 30 November 1986 – 29 November 1989.

6.  On 20 December 1990, the applicant was involved in an automobile accident and sustained neck, left shoulder, lower back and left knee injuries.  He received medical treatment at Fort Belvoir, VA, Fort Richie, MD, and from a civilian chiropractor.

7.  In March 1991, the applicant was placed on orders to Korea.  He submitted a request for 90-day deferral on 1 April 1991 based on the recommendation of his attending physician and consultation with his attending chiropractor.  However, there is no evidence of record to show that he was not cleared for assignment to Korea.  

8.  On 2 June 1991, the applicant arrived in Korea.  While there, he was evaluated by the 121st Evacuation Hospital for a complaint of back pain, headache and left leg pain with weakness.  He stated he was unable to perform his duties because of his complaints.  A physical examination found he had mild limitation of motion of the spine with tenderness at the L4-5 midline region.  His left knee showed mild pain on extremes of flexion with tenderness around the patella and patellofemoral crepitus with no gross instability.  X-rays showed some degenerative changes in his lumbar spine and mild posterior disc bulge and ligamentum flavum hypertrophy and facet degenerative joint disease.  He was diagnosed with lumbar radicular syndrome with weakness; medial meniscus tear and medial plica and chondromalicia of the patellofemoral joint of the left knee; and post traumatic headache and neck pain.  It was recommended he be administratively returned stateside for neurosurgical evaluation, recommendations and follow up care/rehabilitation as required.

9.  On 30 June 1992, the applicant was assigned to WRAMC in a patient status. He was given a neurosurgical consultation and referred to a medical evaluation board (MEB) for diagnoses of degenerative joint disease of the lumbosacral spine; chondromalacia of the patella femoral and medial femoral condyle of the left knee; headaches – no convulsions, dizziness, tremors; no depression but he reported excessive stress from being stationed in Korea.

10.  On 17 August 1992, an MEB convened and recommended that the applicant be referred to a PEB.  

11.  On 3 December 1992, a DA Form 268, Report to Suspend Favorable Personnel Actions (Flag) was prepared.  The form stated the flag was initiated effective 3 December 1992 but no reason was listed.

12.  It appears the applicant rebutted the findings of the MEB because he wrote a statement on 11 January 1993 wherein he noted that both knees hurt and the left one had gotten worse since his surgery in Korea; his left knee locked and he had severe pain and walked with a limp; he experienced severe back pain.  He had moderately severe pain in both feet.   He did “not concur because my doctors isn’t (sic) writing what they are telling me.”  Also on this date he requested continuation on active duty.

13.  On 1 February 1993, an informal PEB convened and determined the applicant was unfit by reason of degenerative joint disease and recommended his separation with severance pay with a disability rating of 10 percent.  His headaches were determined to be not unfitting.  He nonconcurred and requested a formal hearing with personal appearance and regularly appointed counsel.

14.  On 25 March 1993, the applicant appeared before a formal PEB with civilian counsel (he had signed a release of regularly appointed military counsel).  The formal PEB found the applicant unfit by reason of degenerative joint disease and recommended his separation with severance pay with a disability rating of         10 percent.  His headaches were determined to be not unfitting.  

15.  On 15 April 1993, the applicant indicated he did not concur with the PEB’s finding and recommendations.  He had signed an acknowledgment that he had 10 days to submit his rebuttal to the PEB.  The PEB had not received a rebuttal as of 3 May 1993.

16.  The applicant was considered for promotion to SFC by the October 1993 promotion selection board but was not recommended for promotion.

17.  On 17 November 1993, a DA Form 268 was prepared removing the flag on the applicant effective 16 November 1993 but no reason was listed. 

18.  On 18 November 1993, the applicant was assigned to his home to await final action on his case and further disposition as directed by the Secretary of the Army in connection with his physical evaluation proceedings.

19.  On 11 February 1994, the applicant’s security clearance was terminated.  On this date also he was discharged by reason of a physical disability with severance pay.  He had completed 16 years, 2 months and 12 days of creditable active Federal service.  

20.  On an unknown date, the applicant was convicted of conspiracy in Federal District Court and sentenced to the custody of the Bureau of Prisons.  On or about 3 February 1998, the Eleventh Circuit Court of Appeals granted his appeal, reversed his conviction and remanded the case.  The District Court then dismissed the indictment against the applicant.

21.  On 26 October 1993, the applicant requested the Board change his medical separation to a medical retirement.  The Board denied his request on 4 June 1997.

22.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

23.  The VA Schedule for Rating Disabilities (VASRD) assigns a 10 percent rating for degenerative arthritis when there is X-ray evidence of involvement of     2 or more major joints or 2 or more minor joint groups.

24.  Army Regulation 600-8-2 prescribes policies governing the suspension of favorable personnel actions.  It states that a flag will be submitted when any adverse action, such as charges, restraint, or investigation is initiated and will be removed when the soldier is released without charges, charges are dropped, or punishment is completed.

25.  Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  It provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is normally 3 years.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  In instances of disqualification as determined by the unit commander, the commander will prepare a statement of the rationale for his or her decision.  This statement will include the period of disqualification and will be referred to the individual concerned for response.  

CONCLUSIONS:

1.  The Board concludes it is not appropriate to reinstate the applicant to active duty and therefore not appropriate to give him back pay and education benefits for a time he was not on active duty.  The evidence of record shows that he had joint degenerative changes normally found in an older, active individual such as a soldier.  These changes were aggravated by his motor vehicle accident to the point that he stated while in Korea that he was unable to perform his duties because of his complaints of pain.  Although he nonconcurred in his PEBs and requested continuation on active duty at the time, the Board notes that in October 1993 he requested that his disability rating be increased so he would qualify for a medical retirement.  If the applicant has any questions concerning education benefits he may be eligible for as a result of his service, he should direct them to the Department of Veterans Affairs.
2.  The evidence of record shows that the applicant’s security clearance was terminated during normal separation processing and not as the result of any adverse action; therefore, the Board concludes it is not appropriate to reinstate his clearance.

3.  The Board does not agree with the applicant’s contention that the disability rating given and his separation was the result of the PEB’s abuse of its authority and was prejudiced by his legal problems.  The Board concludes that his disability rating of 10 percent was appropriate and in accordance with the VASRD.

4.  The Board notes that the applicant was not recommended for promotion to SFC and therefore concludes it is not appropriate to correct his records to show he was promoted to SFC.

5.  The Board does conclude that it would be equitable to award the applicant the Army Good Conduct Medal 5th award.  He was due this award 29 November 1992.  There is no evidence of record to show that his unit commander determined he was disqualified for the award, prepared a statement to that effect and presented it to the applicant for rebuttal.  The applicant was not flagged until 3 December 1992 although it appears the investigation into the incident that led to his arrest and conviction was initiated before this date and the flagging action should have been initiated when the investigation was.  However, in light of the fact that his conviction was reversed and his indictment dismissed, the Board concludes it would be an injustice not to now award the applicant the Army Good Conduct Medal 5th award.

6.  The Board concludes that it would not be appropriate to award the applicant the Army Good Conduct Medal 6th award or any other award or decoration for service he did not render because he was properly discharged.

7.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by awarding the applicant the Army Good Conduct Medal 5th award for the period 30 November 1989 – 29 November 1992 and by adding this award to his DD Form 214.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rgh___  __mdm___  __jps___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Robert G. Hinkle
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033884	
SUFFIX		
RECON		
DATE BOARDED	20000329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.