IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150007228 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's request for voidance of his honorable discharge from the U.S. Army Reserve (USAR), reinstatement to Reserve duty as a chaplain, and referral to a non-duty related physical evaluation board (PEB). 2. Counsel states: a. The chronology of this case reflected a serious communication breakdown between the applicant and his chain of command while he was serving on active duty as a member of the 63rd Regional Support Command (RSC). The applicant struggles with the English language and has difficulty understanding all the facets. He further has a significant challenge understanding acronyms and certain terminology and has had issues since serving in the Army. He would often seek advice and assistance from others in order to gain understanding of regulations, orders, and communications. He was born in South Korea; he learned to speak English later in life and has not mastered all the dimensions of the language. b. The applicant sought assistance from the command staff and representatives at various times after he received the PEB notification paperwork. However, he did not fully understand the PEB process. Further, he did not fully understand the impact of the medical retirement/separation issues associated with the PEB and as such he was reluctant to sign the enclosed documentation. The individuals he spoke to at various junctures would provide incomplete answers to his questions. They were consistently unhelpful and did not assist him to ensure a complete understanding of the requirements. c. The applicant's role as the senior chaplain was minimized by the command. He was not permitted to present information at command staff meetings or act as speaker. He was accused of abusing the system by his executive officer. The adversarial relationship the command had toward the applicant contributed to the lack of support. The record reflects the command was impatient with the applicant throughout the entire evolution of the case. While this is a separate issue and could have been lodged as an equal opportunity complaint, the applicant did not want to further complicate the issue and interfere with the PEB package that he was attempting to submit. d. The applicant just desired to resolve the issues and receive a complete medical evaluation for his diabetic condition. However, this dimension does provide insight into the essential facts of the case. Specifically, the command was frustrated in dealing with the applicant and his questions regarding the PEB issues. e. The contention that the applicant did not exercise due diligence in the case is not accurate. The Board makes a point to emphasize the applicant was a field grade officer and places the duty upon him to already be familiar or, in the alternative, to take the necessary steps to become familiar with his obligations and duties related to the Physical Disability Evaluation System process. To deny relief based on the applicant's rank and experience fails to give due consideration to the special circumstances of his case. As described in his sworn petition, there were multiple factors that directly contributed to the chain of events in this case. They included: * communication challenges between the applicant, the command, and the support staff * a lack of patience by the command and support staff regarding his concerns * the lack of interest by the command in ensuring the applicant's questions were properly addressed * the timing surrounding when the PEB package was submitted f. The facts indicate the applicant was encountering difficultly with the submission at various junctures while it was in his possession; however, it is evident the command was less than aggressive in ensuring the applicant received the correct assistance he needed in a timely manner to work through the process. g. In summary, the contention the applicant was intentionally not compliant and failed to exercise due diligence is not the case. On the contrary, the applicant desired accurate information, answers to his questions, and consideration of his case by a PEB. He exhausted his efforts to have his questions and concerns answered and effectively complete the process. However, due to the myriad of factors discussed, he was denied that right. 3. Counsel provides: * Army Board for Correction of Military Records (ABCMR) Record of Proceedings * sworn statement from the applicant CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140009854 on 24 February 2015. 2. Counsel's contentions and the applicant's sworn statement are new evidence that warrant consideration by the Board at this time. 3. The applicant was appointed as a second lieutenant in the USAR (USAR) on 5 January 2000. He served as a chaplain. He was ordered to active duty on 10 February 2003 in support of Operation Enduring Freedom. 4. A DA Form 3349 (Physical Profile), dated 5 May 2004, shows he was issued a permanent profile rating of 3 for the medical condition of diabetes mellitus type 2 on oral medication and determined to require a PEB. He was found fit for duty with his permanent physical profile. 5. He was released from active duty on 8 February 2005. 6. He was promoted to major effective 18 February 2011. 7. Records show he received modified physical profiles for diabetes on 20 September 2011 and 30 August 2012, stating he is not able to live in an austere environment without worsening of his medical condition. 8. On 23 March 2012, the applicant was notified he was medically disqualified for continued service in the USAR due to his permanent physical profile. He was sent an election of options. The memorandum clearly states that failure to respond within 30 days or supply required documents within the allotted time frame will result in his case being labeled as non-compliant and administrative actions will be initiated. 9. His DA Form 67-9 (Officer Evaluation Report) covering the period 2 October 2011 through 1 October 2012 shows he received a "YES" for the following entries: * communicating (displays good oral, written, and listening skills for individuals/groups) * decision-making (employs sound judgement, logical reasoning and uses recourses wisely) 10. On 19 December 2013, he was honorably discharged from the USAR by reason of medical disqualification. 11. There is no evidence of record showing the applicant submitted a complete packet to the 63rd RSC requesting PEB referral. 12. His records contain an undated letter from the Deputy G-1 (Support), Headquarters, USAR Command, Fort Bragg, NC, to a Member of Congress which states: a. On 23 March 2012, the 63rd RSC sent the applicant an election of options. b. On 2 November 2012, he was counseled by the headquarters detachment commander and deputy group commander and he elected an honorable discharge in lieu of a medical board on the DA Form 4187 (Personnel Action). c. The 63rd RSC received the applicant's DA Form 4187 requesting discharge on 2 November 2013. d. His discharge orders were published on 4 November 2013 with an effective date of 19 December 2013. 13. Counsel provided a sworn statement from the applicant, dated 6 April 2014, which stated: a. He is a Korean American born in South Korea. English is his second language. His understanding level for the English language varies depending on the type of information to review and evaluate. He has an accent and his tone and modulation is evident when he speaks. b. He encountered substantial challenges in understanding concepts and adjusting to U.S. Army terminology and acronyms. As a military chaplain, the nature of his assignment allowed him to perform his duties; however, he encountered communication problems and he would often seek advice from others in order to effectively understand certain communications, orders, and regulations. c. He was ordered to active duty from 2003 to 2005. While serving on active duty he was diagnosed with diabetes mellitus type 2 and he was referred to a PEB. d. He was ordered to active duty in 2008 and he received modified physical profiles in 2011 and 2012 due to his diabetic condition. e. In March 2012, he was notified of his medical disqualification for continued service in the USAR. However, the information contained in the document, the process, as well as his rights and responsibilities, were unclear to him. He had numerous questions and concerns about the content, process, and procedures. He was also concerned about the impact this would have on his career and family. Once he received this document, he brought it to the attention of the unit S-1 who told him what documents he needed. He prepared the documents and provided them to the S-1 staff. However, several months later, he received the same letter from the 63rd RSC. He again consulted with his S-1 staff and his unit administration. They could not provide him with clear information as to the process and what was missing the first time he prepared the package. He did not understand what specifically needed to be provided. He further inquired many times about his medical status to other members of the staff, but they did not help him. f. During the entire process people who were designated as points of contact could not adequately explain the retirement/separation issues with the PEB. Their answers were often incomplete and he was reluctant to sign documentation without having all his questions answered. g. During this assignment, his command changed leadership. From the onset, they appeared hostile toward him and treated him differently than other staff officers for no apparent reason. They appeared to be frustrated with his language and the questions he would ask. He was the senior chaplain in the unit, but they designated another officer to speak at command meetings. He was not told why and can only conclude it was related to his lack of English fluency and presenting information. h. In October 2013, the executive officer harshly stated he had abused the military system and directed him to sign a counseling statement. He tried to explain the facts and circumstances he was having surrounding the paperwork and events, but the executive officer was reluctant to listen to his explanation. As such, the applicant refused to sign the counseling statement because he believed he was not receiving assistance and support from the command regarding his paperwork. Shortly after this event, he was informed he was noncompliant with Army regulations regarding the PEB. A short time later, he was directed to sign his discharge documentation. i. The Board concluded he failed to exercise due diligence from the time he received the PEB notification documents until his separation date. This is not accurate. He made repeated efforts to have his questions and concerns answered. He was unable to receive a full and complete explanation to his questions. Further, the command was aware that he had many questions and had not completed the package. They did not make an effort to request the package, or provide a specific point of contact with whom he could discuss the issues and resolve them. They did not raise the issue with him. He had communication problems at various levels through this entire process while trying to seek help. There was no intent to abuse the system or take advantage of the process. 14. On 24 February 2015, the ABCMR denied the applicant's request to void his honorable discharge from the USAR, reinstate him to Reserve duty as a chaplain, and refer him to a non-duty related PEB. The Board determined he failed to exercise due diligence as a major with 13 years of service and that he had ample time and opportunity to make himself knowledgeable on the process or inquire after the status of his packet in the intervening 20 months between when he was informed of his medical disqualification and the submission of his request for medical discharge in lieu of a PEB. 15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability incurred while entitled to basic pay. It states 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, grade, rank, or rating. Under the laws governing the Physical Disability Evaluation System, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 16. Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement. a. Paragraph 3-3 (Disposition) provides that USAR Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9. b. Paragraph 9-12 (Request for PEB Evaluation) states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve Component Soldiers with non-duty related medical conditions, medical evaluation boards are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the RSC or the U.S. Army Human Resources Command Surgeon's Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support counsel's contention there were communication challenges. The evidence shows the applicant was an experienced officer serving as a chaplain in the rank of major and his final officer evaluation report shows he received a "YES" rating for communicating and decision-making. 2. Counsel also contends the applicant did not fully understand the process and procedures of the PEB. However, there is no evidence and counsel provided no evidence which shows the applicant was not properly counseled on the PEB process. 3. There is no evidence of record showing the applicant submitted a complete packet to the 63rd RSC requesting PEB referral. 4. The evidence shows he requested discharge on 2 November 2012 and he was discharged from the USAR accordingly. 5. In view of the foregoing evidence, there is no basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x_____ ___x____ 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 to amend the decision of the ABCMR set forth in Docket Number AR20140009854, dated 24 February 2015. _____________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. ABCMR Record of Proceedings (cont) AR20150007228 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007228 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1