IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150002393 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 IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150002393 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. IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150002393 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show he was medically retired instead of discharged under honorable conditions (general). 2. The applicant states: a.  His general discharge under honorable conditions resulted from a chapter proceeding that did not fairly take his pre-existing medical conditions into consideration. b.  He believes the medical evaluation board (MEB), which was initiated prior to the chapter proceedings, would have appropriately characterized his service as honorable based on a disability retirement for serious chronic medical conditions stemming from a duty-related physical assault and related injuries that became unfitting in March 2013. c.  The recommendation for his involuntary separation from the Commanding General, Fort Drum, NY, and the decision by the Secretary of the Army are unjust due to his compelling pre-existing medical conditions. d.  His medical conditions were reviewed by Army physicians and Department of Veterans Affairs (VA) physicians who unanimously agreed with his primary disqualifying diagnosis of chronic adjustment disorder with anxious mood from a physical assault by an active duty Soldier. The primary diagnosis meets the qualifications for a chronic condition since the symptoms lasted longer than 6 months, is incompatible with Army standards, and is unfitting for active duty service as of March 2013. A narrative summary was generated and he signed his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) in July 2014. e.  His primary diagnosed medical condition of chronic adjustment disorder with anxious mood was assigned a 50-percent disability rating. The chronicity of this one medical condition left him with an unusual hardship, starting as early as November 2012 with occupational stress leading to burnout. f.  He was physically assaulted on 15 May 2014 and these traumatic events interfered with his physical and psychological well-being, leading to a burden requiring extensive medical and psychological therapeutic interventions for chronic adjustment disorder with anxious mood and panic episodes. g.  There is no question that his primary diagnosis was considered a physical disability that could be referred to an MEB and PEB. While under review, the MEB and PEB physicians and his behavioral health provider were aware of his manifestations of anxiety. h.  His physical assault in May 2013 compounded an already overwhelmingly anxiety-provoking situation and led to the chronicity that continues to challenge him. i.  On 10 April 2013, Department of Defense (DOD) Instruction 1332.38 (Physical Disability Evaluation) was amended to be consistent with the current version of the VA Schedule for Rating Disabilities. j.  Regular medical appointments with his primary care manager, a neurologist, and pain management specialist for multiple procedural interventions to assist with the chronic management of his conditions were necessitated, which interfered with his quality of life. A neurosurgeon recommended continued pain management and his care now consists of regularly scheduled visits with a pain management physician, interventional steroid injections, oral analgesic medications daily as needed, and additional conservative measures to manage his pain. k.  It is not known to what extent and for how long he will suffer from the physical and psychological damage from the physical assault. There is a strong probability that his condition will persist or worsen in the future as evidenced by the MEB and PEB recommendations for retirement with a 90-percent service-connected disability rating. l.  His need for continuous care from multiple providers will create an excessive financial burden in his ability to provide for himself and his family. Without the benefit of a combined total of a 90-percent service-connected disability, which is equivalent to $1,906.05 in monthly supplementary income and medical benefits, he will be medically and financially disenfranchised. He believes this is unjust and should be grounds for reconsideration. 3. The applicant provides: * official Army photograph * foreign business card * Official Military Personnel File record extracts * medical record extracts * email * two DA Forms 2823 (Sworn Statement) * DA Form 5893 (Soldier's MEB/PEB Counseling Checklist) * DA Form 5892 (PEB Liaison Officer Estimated Disability Compensation Worksheet) * DA Form 199 * VA Rating Decision, dated 26 March 2014 * former counsel's brief, dated 16 July 2014 * self-authored statement, dated 28 September 2015 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer as a physician assistant (PA) in the rank of first lieutenant on 25 February 2010. 2. On 21 September 2011, he was ordered to active duty. 3. On 6 October 2011, he was appointed as a first lieutenant in the Regular Army. 4. U.S. Army Criminal Investigation Command (CID), Fort Drum, NY, records show: a.  On 18 October 2013, S____ R. S____, a patient and wife of another Soldier, advised Major A____ G____, a medical professional, Guthrie Medical Clinic, Fort Drum, NY, that the applicant raped her and she had not reported it. Major A____ G____ advised S____ R. S____ that she was obligated to report the incident up the chain since she was in the applicant's chain of command. b.  On 30 October 2013, S____ R. S____ provided a sworn statement in which she indicated, in summary, the applicant: * conducted himself unprofessionally and inappropriately during her gynecological checkup on or about 11 July 2013 * made in appropriate comments to her at the gym * raped her c.  Text messages were read/received and sent by S____ R. S____ and the applicant on 19 July 2013 and 23 July 2013. d.  On 18 March 2014, Ms. R____ P____ disclosed to Special Agent B____ during a telephonic interview that: * she dated the applicant for about 2 months and he told her his name was something else * she had been to his residence on one but less than three occasions in which she spent the night and had consensual sexual intercourse each time she stayed at his residence * he was trying to entice her with sex on the second meeting between them e.  Text messages were read/received and sent by Ms. R____ P____ and the applicant on 10 August 2013 and 20 September 2013. 5. On 26 March 2014, the VA recommended a proposed 50-percent disability rating for his adjustment disorder with anxiety (claimed as adjustment disorder with anxious mood) for Disability Evaluation System purposes. The VA proposed to establish service connection for adjustment disorder with anxiety (claimed as adjustment disorder with anxious mood) as directly related to military service with a 50-percent disability rating. 6. On 13 May 2014, the applicant was issued a general officer memorandum of reprimand (GOMOR) for committing adultery, having inappropriate romantic relationships with women who were not his wife, and sexual misconduct with a patient, whom he knew to be married to a deployed Soldier. The GOMOR-issuing authority directed permanently filing the GOMOR in his records. 7. On 2 June 2014, the applicant provided a response to the GOMOR wherein he stated: a.  He did not come from a military family and he knew very little about the Army in general and even less about the Officer Corps. His training consisted of a total of 3 weeks and very little time was allotted to the fundamental requirements of leadership. Good order and discipline were abstract concepts to him and he literally had no idea of how or why medical professionalism needed to be integrated with military professionalism. His military training was insufficient to bridge the gap between being a civilian PA and an Army officer PA. b.  He was embarrassed and ashamed because he fully realized he was responsible for his acts and omissions. c.  The MEB and PEB found him physically unfit for continued military service as a result of his mental health diagnosis and issues. He requested a medical discharge for the sake of his family. 8. On 2 June 2014, his counsel at the time submitted a response to the GOMOR. Counsel requested a medical separation on behalf of the applicant and stated: a.  The applicant had no military experience or background at the time he was selected for the direct commissioning program for PAs. b.  According to the narrative summary prepared for his MEB/PEB, he was diagnosed with chronic adjustment disorder with anxiety which began sometime in 2012 after his arrival at Fort Drum and was aggravated by the fact that he was a victim of an unprovoked assault by a subordinate. c.  The applicant was going through the MEB process for a mental health disease that could be linked to the problems that led to the incident. d.  There were numerous and repeated references in his behavioral health records of which his command was not notified. e.  Despite the applicant's desire to serve and good intentions to do so, the stress of a military medical practice, stress of being separated from his family who resided in southern California, and being subjected to physical assault by a subordinate officer was cumulatively more than his psyche could endure. 9. On 11 June 2014, the applicant was notified of initiation of elimination action. He was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs  4-2(b)(5) and 4-2(b)(8), for misconduct. A DA Form 268 (Suspension of Favorable Personnel Actions) was initiated the same date. The applicant was advised of his rights. 10. On 16 June 2014, the applicant acknowledged receipt of the notification of initiation of elimination action and indicated he would submit a rebuttal in his own behalf. 11. On 14 July 2014, an informal PEB found him physically unfit and recommended a disability rating of 50 percent for his adjustment disorder with anxiety (claimed as adjustment disorder with anxious mood) and his placement on the Temporary Disability Retired List with a re-examination during May 2015. 12. On 16 July 2014, his counsel submitted a response to the notification of initiation of elimination action in his behalf. a.  Counsel objected to issuance of the GOMOR and stated it was in direct violation of Army Directive 2014-20 (Prohibition of Retaliation Against Soldiers for Reporting a Criminal Offense), dated 19 June 2014. b.  The notification of initiation of elimination action was legally insufficient and failed to comply with Army Regulation 600-8-24. c.  The applicant was systematically denied his rights to administrative and procedural due process of law based on: (1)  the failure to provide a copy of his DA Form 199, (2)  the failure to provide copies of the New York State Police and CID reports of investigation, and (3)  the false rape allegations. 13. On 23 July 2014, he concurred with the PEB recommendations, waived his right to a formal hearing, and elected not to request reconsideration of his VA ratings. 14. The Army Ad Hoc Review Board (also known as the Board of Review) reviewed the applicant's probationary officer elimination action on 12 October, 21 October, and 12 November 2014, and recommended his discharge under honorable conditions (general). 15. On 4 December 2014, the Deputy Assistant Secretary of the Army (Review Boards) approved the recommendation of the Army Ad Hoc Review Board. 16. On 19 December 2014, he was discharged under honorable conditions (general). 17. On 28 September 2015, the applicant provided self-authored statements indicating: a.  He initially experienced anxiety and panic in November 2012 when he attempted to diffuse a heated situation and a Soldier who was a former college-level linebacker squeezed his hand and caused him severe pain and a temporary nerve injury. b.  In December 2012, he underwent a rehabilitative transfer and he suffered silently for many months between the hand injury and the next incident when he experienced workplace harassment by Captain K____ N____, an individual with whom he shared office space. c.  He was receiving regular psychiatric treatment from Dr. ____, the Chief, Behavioral Health Clinic, due to the two incidents. d.  He requested early resignation, but his request was denied and he was told he had not completed his active duty service obligation. This left him feeling very vulnerable in a volatile situation. His occupational stress magnified and he continued to seek psychiatric treatment weekly. e.  His misconduct allegations were dropped from a criminal standpoint and were used as justification for his involuntary separation from the Army. f.  His staff privileges were permanently unaffected since, collectively, the medical committee at Fort Drum voted to maintain his good standing, as evidenced by the fact that the committee never placed him on probation or limited, suspended, or revoked his staff privileges. g.  He continues to struggle with anxiety, panic attacks, chronic pain, and a multitude of symptoms related to the physical and mental injuries related to his Army service. He does not have the resources to afford psychiatric care for his anxiety and panic attacks. h.  He was notified he was ineligible for VA benefits due to his previous year's income which exceeded their maximum limit and he was notified that his MEB was most likely nullified by his discharge characterization. 18. On 23 October 2015, the applicant was provided a redacted document from the Army Ad Hoc Board that shows the board considered his MEB/PEB findings and recommendations as well as his mental health evaluation. He was given an opportunity to provide a response to the redacted document. He did not respond. REFERENCES: 1. Secretary of the Army memorandum, dated 17 June 2013, subject: Army Directive 2013-12 (Implementation of DOD Policy Change Concerning Chronic Adjustment Disorder), states a diagnosis of chronic adjustment disorder will cause a Soldier to be referred to an MEB when the Soldier exhibits persistent or recurring symptoms meeting the criteria detailed in the current edition of the Diagnostic and Statistical Manual for Mental Disorders. These symptoms must be directly caused by exposure to an enduring stressor and must last longer than 6 months. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical 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 or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. c.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. d.  Recommendations of the informal PEB are recorded on a DA Form 199. Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded e.  Soldiers indicate their elections by placing a checkmark in item 13 and by signing and dating the original and the medical treatment facility copies. 4. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 5. Title 10, U.S. Code, 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, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Secretary of the Army memorandum, dated 9 December 2014, subject: Army Directive 2014-29 (Inclusion and Command Review of Information on Sex-Related Offenses in the Army Military Human Resource Record (AMHRR)), established new policy to ensure accountability for sex-related offenses. Sex-related offenses include violation of Article 120 of the Uniform Code of Military Justice. Commanders will ensure that a Soldier's permanent record in the AMHRR is annotated for Soldiers who receive a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. For the purposes of this directive, "punitive administrative action" means any adverse administrative action initiated as a result of sex-related offenses and includes, but is not limited to, memorandum of reprimand, admonishment, or censure from all levels of command. This requirement applies to Soldiers in all components, regardless of grade. Commanders do not have the option to designate that these documents be filed locally or in the restricted folder of the AMHRR. Documents will be filed in the performance-disciplinary folder in the interactive Personnel Electronic Records Management System. The Commander, U.S. Army Human Resources Command, will designate and implement an appropriate code for use on Soldiers' record briefs to identify those Soldiers with a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense. The requirement to annotate the AMHRR is retroactive to 26 December 2013. This policy does not prohibit a Soldier from appealing the placement of the notation in the AMHRR to the ABCMR. 7. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. a.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b.  A memorandum of reprimand may be filed in a Soldier's Official Military Personnel File (OMPF) only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7. c.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 8. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR, including the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or this Board). 9. Army Regulation 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officer personnel. a.  An officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. An officer who will not or cannot maintain those standards will be separated. b.  The Deputy Assistant Secretary of the Army (Review Boards) or Assistant Secretary of the Army (Manpower and Reserve Affairs) may direct retention, discharge, or referral to a Board of Inquiry. Actions by these two officials, as appropriate, and acting for the Secretary of the Army, are final. c.  If a commissioned or warrant officer is being processed for release from active duty, separation, or retirement or has been referred for elimination action, and when it is determined that the officer has a medical impairment that does not meet medical retention standards, both actions will be forwarded to the Secretary of the Army or his designee for determination of appropriate disposition. d.  An officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty. e.  An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 10. The Army Ad Hoc Review Board acts on behalf of the Secretary of the Army and considers officer resignations for the good of the service in lieu of general court-martial, resignations, discharges in lieu of elimination, and probationary officer elimination cases. 11. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends he was unjustly discharged and he should have been medically retired. 2. He was processed through the Army Physical Disability Evaluation System for a chronic adjustment disorder with anxious mood while he was under investigation for misconduct. 3. He was issued a GOMOR for committing adultery, having inappropriate romantic relationships with women who were not his wife, and sexual misconduct with a patient, whom he knew to be married to a deployed Soldier. The issuance of the GOMOR led to his elimination action for misconduct. 3. By regulation, all probationary officer elimination cases must be forwarded to Headquarters, Department of the Army. Every such case will be decided by the Army Ad Hoc Review Board. 4. Although he contends the Army Ad Hoc Review Board did not consider his MEB/PEB findings or recommendations, the evidence of record shows the board considered his medical conditions as well as the recommendations. The Army Ad Hoc Review Board determined his acts of misconduct outweighed any exceptionally honorable service he may have had. Accordingly, the board directed his separation. 5. The evidence shows the applicant was properly and equitably discharged. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. He appealed the elimination action through the appropriate channels and there is no evidence of procedural errors which would have jeopardized his rights. His discharge accurately reflects his overall record of service. 6. The ABCMR does not amend and/or correct military records solely for the purpose of making an applicant eligible for benefits. Each case is individually considered based on the evidence of record and the evidence presented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002393 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002393 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2