BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140020608 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: 17 May 2016 DOCKET NUMBER: AR20140020608 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: 17 May 2016 DOCKET NUMBER: AR20140020608 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 records to show he was medically retired vice honorably discharged in 2013. 2. The applicant states: a. Prior to his discharge, he was in the midst of the Medical Evaluation Board (MEB) process. He was referred to the MEB for post-traumatic stress disorder (PTSD), major depressive disorder, and migraine headaches; all these conditions were deemed medically unacceptable at the MEB level. After being in the process for more than a year and a half, his expiration of term of service (ETS) date was near. The Physical Evaluation Board Liaison Officer (PEBLO) was new and inexperienced. With the assistance of the Office of Soldier’s Counsel, he learned that his MEB case sat unmoved in her file cabinet for more than 6 months (from 15 April to 17 October 2013) because she failed to get proper guidance and instructions to handle his case. b. He was not certain where his case was in the process and his health conditions were deteriorating fast. The medical conditions made it difficult for him to continue to serve as a productive noncommissioned officer. Under the misguided and incomplete information he received from his PEBLO, he decided to end his service to prevent the undue stress on his unit and command. Shortly after leaving the Army, he learned the Department of Veterans Affairs (VA) decision was complete and the PEB level of the process would have been over had he waited just a few short days. His combined disability rating was 100 percent. His individual conditions were rated at 70 percent for PTSD, 70 percent for major depressive disorder, and 50 percent for migraine headaches. These ratings alone would have qualified him for medical disability retirement. Those few days make a difference in his status as a retiree. 3. The applicant provides his service medical records. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 29 August 2002 and he held military occupational specialty (MOS) 92Y (Unit Supply Specialist). He served through multiple reenlistments in a variety of assignments. His last reenlistment was for a 3-year term, executed on 22 October 2010, establishing his ETS date as 21 October 2013. 2. He served in Kuwait/Iraq from February 2003 to August 2003 and from January 2005 to December 2005. He attained the rank/grade of staff sergeant (SSG)/E-6. 3. Between 2003 and 2006, he was assigned to Fort Benning, GA and he was reassigned to the Los Angeles CA Recruiting Battalion through October 2011. He was then reassigned to the 567th Inland Cargo Transfer Company, 53rd Transportation Battalion, 7th Sustainment Brigade, Fort Eustis, VA. 4. The records contain multiple DA Forms 3975 (Military Police Report (MPR)) with various dates: a. On 27 July 2004, the Fort Irwin Provost Marshall’s Office received a request for assistance from the Fort Benning Military Police Investigations (MPI) Office regarding an incident involving the applicant. The investigation by Fort Benning MPI revealed that on 17 February 2002 the Fort Benning MPI was notified of larceny of private property and larceny of private funds, which occurred at the National Training Center in California. A Soldier entered the MP station and reported larceny of private property (cellular phone). The investigation revealed that the applicant gained access to the phone and used it several times without permission. On 3 March 2004, he was advised of his rights, which he waived, and he admitted to the offense of wrongful appropriation of private property and private funds. b. On 2 December 2011, a captain complained that her credit card was stolen from her wallet on her desk. An investigation revealed that the applicant was responsible and had made several unauthorized purchases. The investigator believed the applicant committed the offenses of larceny of private property, larceny of private funds, forgery, and obtaining goods under false pretenses. In the commander’s report, the commander entered the remarks that after having the Judge Advocate examine the evidence, he determined there was insufficient evidence to initiate any type of action under the Uniform Code of Military Justice. The applicant had been notified of the intent to involuntarily discharge him. The commander also indicated that it was his intent to process the applicant for separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-5 (civil conviction). c. On 27 January 2012, the Newport News Police Department notified the Fort Eustis MPs that a warrant had been issued against the applicant for obtaining money or signature by false pretense. He was transported to the MP station. Further investigation by military law enforcement officials revealed the applicant had been charged by civilian police of three counts of obtaining money under false pretenses, three counts of credit card forgery, and one count of credit card fraud. (1) On 4 May 2012, the applicant appeared before the Newport News General District Court and he was found guilty. He was charged with three counts of credit card forgery (nolle prosequi (i.e., the prosecution declined to pursue these counts)), three counts of obtaining money under false pretenses (guilty – appealed to the circuit court), and fraudulent use of a credit card (guilty – appealed to the circuit court). (2) On 20 August 2012 he appeared before the Newport News Circuit Court, which ordered the following dispositions: on two counts of obtaining money under false pretenses, nolle prosequi; on one count of obtaining money under false pretenses, disposition deferred to 12 August 2013; and on the charge of fraudulent use of a credit card, disposition deferred to 12 August 2013. d. Additionally, on 6 February 2012, a call was received from the James City County (sic) Police Department stating that an arrest warrant was issued for the applicant. The county police charged him with credit card forgery. (1) On 3 May 2012, he appeared before the Williamsburg/James City County General District Court and he was found guilty. (2) On 2 October 2012, he appeared before the Williamsburg/James City County Circuit on appeal. The prosecution dropped the charge (nolle prosequi). 5. His NCO Evaluation Report for the rating period 20121101 through 20131031 shows: * he received a “No” in the Integrity value and the comment “pending a chapter 14-12c for committing a serious offense to include credit card fraud and obtaining money under false pretenses” * his rater rated him “Needs (Some) Improvement” in the Leadership area and commented that he displayed poor judgment resulting in criminal charges to include credit card fraud and obtaining money under false pretenses 6. His Enlisted Record Brief shows he was barred from reenlistment (Code 9V) and flagged (Suspension of Favorable Personnel Action) as follows: * flag code LA, dated 9 December 2013 (pending an investigation to include any action that may result in disciplinary action, financial loss, or other loss to the Soldier’s rank, pay, or privileges) * flag code BA, dated 14 December 2012 (pending involuntary separation, field initiated) 7. On 23 April 2013, he entered the disability evaluation system. He signed a DOD/VA Joint Disability Evaluation Board Claim and his case was processed through the Integrated Disability Evaluation System (IDES). 8. Between September and October 2013, a series of events occurred: * on 13 September 2013, the U.S. Army Support Activity, Fort Eustis, published Orders 246-002 ordering his separation from active duty by reason of ETS * on 27 September 2013, because the applicant’s ETS was coming up in October 2013, the Director of Troop Medical Services, Army Medical Department, Fort Eustis requested the applicant be medically extended on active duty through 21 April 2014 to complete his MEB/PEB process * on 4 October 2013, the approval authority approved his request to be extended on active duty * on 17 October 2013, the U.S. Army Support Activity, Fort Eustis, revoked his separation orders 9. On 10 June 2013, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant with the conditions listed below. The MEB recommended referral to a PEB. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. PTSD X 2. Major Depressive Disorder, Moderate X 3. Migraine Headaches X 4. Bilateral Planter Fasciitis X 5. Bilateral Achilles Tendinitis X 6. Mild traumatic brain injury (TBI) with no residual cognitive defect X 7. Bilateral Carpal Tunnel Syndrome X 8. Neck pain X 9. Back pain X 10. Organic Hypersomnia X 11. Erectile Dysfunction X 12. Proteinuria X 13. Left knee pain X 14. Allergic Rhinitis X 15. Bilateral shoulder strain X 16. Bilateral tinnitus X 17. Acne, both shoulders X 18. Tinea pedis right foot X 19. Tinea manuum right hand X 10. The approving authority approved the findings and recommendations of the MEB on 10 June 2013. The applicant did not sign the MEB indicating his agreement or disagreement. 11. On 17 September 2013, the applicant’s immediate commander notified him of his intention to initiate separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. The specific reasons stated by the commander were that the applicant was charged with three counts of obtaining money under false pretenses and one count of credit card fraud in Newport News General District Court. He appealed his case and it was disposed of by placing him in the First Time Offenders Program and giving him community service. The commander recommended the issuance of an under honorable conditions (general) discharge. 12. On 17 September 2013, 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 available to him. 13. It is unclear what the intermediate authority recommended. It is also unclear if the separation authority acted on this separation action or what action was directed. During the processing of this case, several attempts to reach the chain of command by phone and/or email were unsuccessful. 14. On 9 April 2014, following completion of the VA disability assessment of his unfitting and service-connected disabilities, the VA proposed ratings for his unfitting conditions as well as his service-connected conditions. For disability evaluation system processing, the VA rated him under the VA Schedule of Rating Disabilities (VASRD) as follows: * VASRD Codes 8045-9411, PTSD with major depressive disorder and mild TBI, 70 percent * VASRD Code 8100, migraine headaches, 50 percent 15. On 15 April 2014, a DA Form 199 (Informal Physical Evaluation Board Proceedings) was initiated by the PEBLO. This form reflects the unfitting medical conditions and their respective ratings as proposed by the VA. However, this form is not signed by the applicant and was neither sent to nor processed by the U.S. Army Physical Disability Agency (USAPDA). It lists the following entries: * VASRD Codes 8045-9411, PTSD with major depressive disorder and mild TBI, rated at 70 percent * VASRD Code 8100, migraine headaches, rated at 50 percent * a recommendation for a 90 percent disability rating, placement on the temporary disability retired list (TDRL), and reexamination in February 2015 16. As the applicant’s ETS date was approaching, attempts by the PEBLO to reach him failed. His PEBLO prepared extension paperwork for him to complete if he chose to remain on active duty and continue the disability process; however, he never responded. 17. On 18 April 2014, Headquarters, U.S. Army Support Activity, Fort Eustis, published Orders 108-0005 ordering his honorable discharge from active duty effective 21 April 2014 in accordance with Army Regulation (AR) 635-200. 18. He was honorably discharged on 21 April 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged in accordance with chapter 4 of AR 635-200 and assigned separation code JGH due to “Non retention on active duty.” He completed 11 years, 7 months, and 23 days of active service and was authorized separation pay. He did not sign his DD Form 214. 19. On 8 May 2014, the PEB President ordered the administrative termination of the PEB. He stated that the applicant reached his ETS date prior to the Chief of Transportation decision being handed down. The PEBLO requested the applicant’s case be closed. 20. The Board requested and the Office of The Surgeon General (OTSG) rendered an advisory opinion on 18 April 2016 in the processing of this case. An OTSG official (Behavioral Health Division, Health Care Delivery, Medical Command) referenced the Diagnostic and Statistical Manual-5, AR 40-501 (Standards of Medical Fitness) with revisions, dated 4 August 2011; and AR 635-200, dated 6 September 2011. She stated: a. The applicant entered active duty on 29 August 2002 and was discharged on 21 April 2014 in accordance with chapter 4 (Non-Retention on Active Duty). He deployed to Iraq from February 2003 through August 2003 and from January 2005 through December 2005. In November 2014, he requested, "review by an MEB for medical retirement." The Board forwarded the case to OTSG "for consideration for the applicant to re-enter and complete the Disability Evaluation System (DES)." This opinion is based on the information provided by the Board and records available in the Department of Defense electronic medical record (AHLTA). b. AHLTA records indicate that he first sought behavioral health (BH) treatment in January 2013 when he presented with symptoms of PTSD that he reported "have been ongoing since (my) first deployment in 2003." He was diagnosed with PTSD in February 2013 and seen at least weekly over the next year by Social Work, Psychiatry, Psychology, and Neurology. He was also followed during this time by a TBI nurse case manager. c. An MEB was initiated in April 2013. A case management note dated 11 June 2013 stated that there may be a pending administrative separation for credit card fraud which would put the MEB on hold. The MEB was sent to the PEB in October 2013 and the administrative separation was put on hold. Both actions were eventually submitted to his commanding officer simultaneously. Records are unclear as to why his MEB did not proceed to the PEB. d. There is ample evidence that he was diagnosed with and being treated for PTSD at the time of his separation. The MEB process was clearly in progress when he chose to ETS in order to "prevent the undue stress on my unit and command." The documents suggest that he was confused regarding his MEB status at the time of his ETS. His DA Form 3897 clearly lists PTSD; major depressive disorder, moderate; and migraines as medically unacceptable in accordance with AR 40-501, chapter 3, with the MEB recommendation to refer to a PEB. 21. The applicant was furnished with a copy of this advisory opinion to give him an opportunity to comment. He did not respond. REFERENCES: 1. AR 600-8-2 (Suspension of Favorable Personnel Actions) provides prescribes policies, operating rules, and steps governing the suspension of favorable personnel actions, referred to as a “flag.” Paragraph 2–2 provides for circumstances requiring a nontransferable flag. A Soldier flagged under the provisions of this paragraph may not be reassigned to another unit unless specifically authorized by this regulation. This restriction does not apply to reassignments required by law. The specific actions or investigations listed below require initiation of a nontransferable flag. More than one flag may be required concurrently. a. Commander’s investigation, Flag Code L. Commanders must flag Soldiers who are suspects or subjects of an investigation or are designated as respondents in a board. The term “investigation” is to be interpreted broadly to include any action that may result in disciplinary action, financial loss, or other loss to the Soldier’s rank, pay, or privileges. Examples of investigations include, but are not limited to, commander’s inquiry, financial liability investigation of property loss, and AR 15–6 investigations. If the investigating officer finds reason to suspect a Soldier who was not originally identified as a suspect, subject, or respondent, the commander must be notified and must Flag that Soldier as well. b. Involuntary separation, Flag Code B, Field Initiated. Soldiers pending involuntary separation or discharge (AR 635-200) to include the Qualitative Management Program, must be flagged. Soldiers will not be flagged solely for undergoing a MEB. Remove the flag when Soldier is reassigned to a transition point for active duty Soldiers. 2. AR 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 Code “JGH” signifies involuntary discharge for failure to meet retention standards but does not identify a specific existing reason for discharge. It is included in the Army SPD inventory for possible future use should the need arise. Instructions for use is provided by Headquarters, Department of the Army message or other directive announcing implementation. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 3-7 states a Soldier whose normal scheduled date of non-disability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. DISCUSSION: 1. The applicant committed a series of serious misconduct, including credit card fraud, larceny of property, forgery, and other offenses. He was also convicted by civil court. His chain of command initiated separation action against him under the provisions of AR 635-200, paragraph 14-12c, for misconduct. However, the separation packet was never finalized and the separation authority never took action in his case. 2. Meanwhile, he entered the IDES due to several medical ailments. His original ETS was 21 October 2013. However, since he was in the disability system, he consented to and was approved for an extension on active duty through 21 April 2014. 3. An MEB found three of his conditions failed retention standards and referred him to a PEB. The VA rated his disability conditions as well as his service-connected conditions. The VA proposed a rating of 70 percent for PTSD with Major Depressive Disorder and mild TBI and 50 percent for Migraine headaches. The rating was transcribed on a DA Form 199 (PEB Proceedings) on 15 April 2014. This form shows * VASRD Codes 8045-9411, PTSD with Major Depressive Disorder and mild TBI; rated at 70 percent * VASRD Code 8100, migraine headaches, rated at 50 percent * A recommendation of 90 percent disability rating, placement on the TDRL, and reexamination in February 2015 4. As the applicant’s ETS date was approaching (21 April 2014), attempts by the PEBLO to reach him failed. His PEBLO prepared extension paperwork for the applicant if he chose to remain on active duty and continue the disability process; however, he never responded. Because he did not submit and consent to continuation on active duty to complete his disability process, the PEB President terminated the PEB and the separation point issued orders separating him from active duty on 21 April 2014. There is no evidence indicating he was unfairly deprived of the opportunity to consent to an additional extension. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140020608 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140020608 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2