IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150009918 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: 7 July 2016 DOCKET NUMBER: AR20150009918 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: 7 July 2016 DOCKET NUMBER: AR20150009918 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 her records to show she did not request resignation from the U.S. Army Reserve in lieu of involuntary separation but was discharged due to medical unfitness. 2. The applicant states: * her husband and children resided in their home in South Carolina while she was mobilized in Texas * one of her children moved in with her 6 months later due to her now ex-spouse's alcohol and drug abuse, leaving two children at home in South Carolina with him * if you check her income tax records you will see this to be the case * if you check her military records you will see she was counseled regarding her son coming to live with her and not having a family care plan * the only reason she moved into a house was to care for her son and that is when all these issues started * all she did was add furniture rental to her rent per the recommendation of officials in St. Louis * her ex-husband left her so she had to maintain two households and now she is being punished for it * in 2008 she approached a sergeant in her unit related to this topic and she was told not to say anything about it, which in hindsight was an error * Captain F____ W____, in the Inspector General's Office, did not represent her and never assisted her with anything * once discharged, he wouldn't return her calls or emails except to tell her to contact her prior unit * her health was destroyed and her back was ruined due to her 3 years in the Army * she asked for a medical evaluation board (MEB) but was told by officials at Fort Gordon that she was officially out of the Army in December 2006 * she is sorry she ever joined an organization that is so terribly unjust and inefficient 3. The applicant provides: * Army Review Boards Agency letter, dated 15 October 2015 * letter to the Army Review Boards Agency, dated 13 December 2015 * 939 pages of medical documents CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army effective 22 April 2003. 2. The medical records she provided contain an operation report, dated 17 April 2008, showing she underwent C4-C5 and C5-C6 (cervical segments) multilevel anterior cervical discectomy and fusion (surgery to remove a herniated or degenerative disc in the neck) at Brooke Army Medical Center on the date of the report. Records indicate she had multiple follow-up appointments for evaluation, pain management, and physical therapy relative to this surgery. 3. The over 900 pages of service medical records she provided do not indicate she: * was issued a permanent physical profile * suffered from a medical condition, or physical or mental condition that affected her ability to perform the duties required by her area of concentration and/or grade or rendered her unfit for military service * was diagnosed with a medical condition that warranted her entry into the Army Physical Disability Evaluation System (PDES) * was diagnosed with a condition that failed retention standards and/or was unfitting 4. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 6 August 2008, shows a non-transferable flag was initiated against her on 6 August 2008 for adverse action. 5. On 8 March 2012, the Commanding General, U.S. Army Reserve Medical Command, issued a general officer memorandum of reprimand (GOMOR) to the applicant for fraudulent charges filed on travel vouchers. The GOMOR imposing authority stated: a. She was reprimanded for her serious misconduct from 9 September 2005 through 6 May 2006 while she was mobilized to San Antonio and Fort Sam Houston, Texas. b. According to U.S. Army Criminal Investigation Command (CID) investigation number XXXX-2008-CIDXXX-XXXXX-8F3, she was mobilized to the San Antonio/Fort Sam Houston area in early September 2005. Because of a shortage of on-post housing, she rented a house in San Antonio. She altered the lease to change the amount of monthly rent from $1,795.00 per month, claiming just herself living at the house, to $2,595.00 per month rent, claiming herself, her husband, and her children all occupied the house. She submitted the fraudulent lease and monthly travel voucher for which she received payment until her orders ended and she was no longer mobilized. During the CID investigation, she refused to cooperate with the investigator and her behavior was described as "very blunt and sarcastic." CID calculated the loss to the U.S. Government at $20,661.00. To date, there is no record of her repaying any portion of this debt. c. She chose to place her personal interests and desires before her obligation to the Army, disregarding and ignoring the very regulations she swore an oath to uphold. Her conduct was unacceptable and prejudicial to good order and discipline. d. The GOMOR was imposed as an administrative measure and not as punishment under the provisions of Article 15 (Nonjudicial Punishment) of the Uniform Code of Military Justice. He intended to file a copy of the GOMOR in her Official Military Personnel File, but would make a final determination about where to file it after reviewing any additional material she chose to submit for consideration. 6. She acknowledged receipt of the GOMOR on 2 April 2012 and indicated she intended to submit statements on her behalf within 7 days to the Commander. She provided an undated statement explaining that she in no way intended to do something fraudulent and was advised by an individual at the Defense Finance Accounting Office to submit her travel vouchers in the fashion she did. 7. Four memoranda from the 3274th U.S. Army Reserve Hospital, dated 20 November 2012, 11 December 2012, 15 January 2013, and 12 February 2013, advised her of her accumulated unexcused absences within the year amounting to a total of 48 unexcused absences. She was advised that accumulation of nine unexcused absences within a 1-year period results in becoming an unsatisfactory participant and being processed for separation from the U.S. Army Reserve. 8. In a Headquarters, Army Reserve Medical Command, memorandum, dated 6 June 2013, subject: Filing Determination – Memorandum of Reprimand, (Applicant), Fraudulent Charges Filed on Travel Vouchers, the Deputy Staff Judge Advocate found the GOMOR legally sufficient. He stated that at the time of the memorandum, the applicant had a show-cause board pending concerning the fraudulent charges filed on travel vouchers that led to the GOMOR. He recommended directing filing the GOMOR in the applicant's OMPF. 9. On 7 June 2013 after reviewing the case file, to include the applicant's statement, the GOMOR-imposing authority directed filing the GOMOR in the applicant's OMPF. 10. On 7 June 2013, the Commander, 3274th U.S. Army Hospital, requested initiation of show-cause action against the applicant for moral or professional dereliction pursuant to Army Regulation 135-175 (Separation of Officers), paragraphs 2-11i(1) and 2-13. She failed to attend battle training assemblies on 17 and 18 November 2012, 8 December 2012, 12 and 13 January 2013, and 9 and 10 February 2013. Mandatory involuntary separation processing is required for Soldiers failing to maintain a security clearance. He recommended characterization of her service as under other than honorable conditions. 11. On 7 June 2013, she was notified by the Commanding General, U.S. Army Reserve Medical Command, that involuntary separation action was initiated against her for moral or professional dereliction and she was required to show cause for retention in military service. Specifically, her submission of fraudulent lease and monthly travel vouchers and intentional misstatement of facts in official statements merited her removal from service. She was advised to acknowledge receipt of the notification and submit her election options, which included resignation in lieu of involuntary separation, transfer to the Retired Reserve (if eligible), or request action on her case by a board of officers. She was advised of her right to consult with a military attorney. 12. A supplemental notification of involuntary separation was issued to her on 24 August 2013. In addition to the previously stated matters meriting her removal from service, she was informed her failure to obtain a security clearance since 11 October 2011 and her 10 accrued unexcused absences from 1 August 2011 through 2 December 2011 merited her removal from the service. 13. She voluntarily tendered her resignation as a Reserve commissioned officer of the Army in lieu of involuntary separation on 23 September 2013. She acknowledged she was advised of the reasons for initiation of the involuntary separation action and of her rights to appear before a board of officers, to be represented by counsel, to submit a brief in her behalf, to present witnesses in her behalf, and to have a reasonable time to prepare her case. She consulted with counsel and waived her other rights with the understanding she may be separated under conditions other than honorable. 14. The Commander, U.S. Army Reserve Medical Command, accepted her request for resignation in lieu of involuntary separation on 15 November 2013 with a recommendation for separation with a general (under honorable conditions) characterization of service. The Commander, U.S. Army Reserve Command, recommended acceptance of the request and separation with a characterization of service of other than honorable on 12 December 2013 and forwarded the request to the U.S. Army Human Resources Command. 15. The Commander, U.S. Army Human Resources Command, approved her resignation in lieu of involuntary separation on 15 March 2014 and directed the issuance of a general (under honorable conditions) discharge. 16. U.S. Army Human Resources Command Orders D-03-405469, dated 18 March 2014, discharged her from the U.S. Army Reserve effective 14 April 2014. Her service was characterized as general. 11. There is no evidence of record the applicant was ever referred to an MEB. REFERENCES: 1. Army Regulation 135-175 (Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States and the U.S. Army Reserve. a. Chapter 2 prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service. Paragraph 2-11 (Moral or Professional Dereliction) states involuntary separation of an officer due to moral or professional dereliction is authorized in the existence of one of the following or similar conditions: * discreditable, intentional failure to meet personal financial obligations * mismanagement of personal affairs to the discredit of the service * mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned * intentional omission or misstatement of facts in official statements or records for the purpose of misrepresentation * acts of personal misconduct * intentional neglect or failure to perform assigned duties, participate satisfactorily in required Ready Reserve training, or comply with applicable directives * conviction by civil court of a felony when no sentence to confinement results * conviction by a foreign court resulting in confinement * entry into a military service of a foreign government * special derogatory evaluation report * failure to meet the standards in a course of instruction at a service school due to disciplinary reasons * conduct unbecoming an officer b. Chapter 6 prescribes the means and procedures governing the submission of resignations which may be submitted by Reserve officers of the Army. An officer who has been notified of being considered for involuntary separation may submit a resignation at any time prior to final action taken on the board proceedings. A resignation will automatically suspend involuntary separation action pending final action on the resignation. The Commander, U.S. Army Human Resources Command, will accomplish administrative separation of officers whose resignation in lieu of involuntary separation has been accepted by Headquarters, Department of the Army. c. Paragraph 4-4 (Removal from an Active Status) states members of the U.S. Army Reserve will be removed from an active status when found to be medically unfit to perform active duty except when the officer has been approved for continuance in an active status under the provisions of Army Regulation  40-501 (Standards of Medical Fitness) or has incurred a disability in the line of duty and is eligible for processing under the provisions of pertinent medical regulations. 2. Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines Army National Guard and U.S. Army Reserve service obligations and participation requirements to include excused and unexcused absences and the enforcement procedures regarding unsatisfactory participation. Chapter 4 states Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue a total of nine or more unexcused absences from scheduled inactive duty training in any 1-year period. 3. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities. a. Chapter 3 provides standards for medical retention. It lists the conditions of asthma (if chronic and resulting in permanent physical profile, repetitive hospitalizations, inability to run outdoors, and/or prevents the Soldier from wearing a protective mask), adjustment disorder, and miscellaneous conditions that result in interference with satisfactory performance of duty as substantiated by the individual's commander as causes for referral to an MEB. It states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB, with the following caveat: U.S. Army Reserve Soldiers not on active duty whose medical conditions were not incurred or aggravated during an active duty period will be processed in accordance with chapter 9. b. Chapter 9 states Soldiers pending separation from the U.S. Army Reserve for failing to meet medical retention standards found not in the line of duty are eligible for referral to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the PDES are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred into the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent physical profile rating of 3 or 4 and are referred by an Military Occupational Specialty Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. DISCUSSION: 1. The applicant's request for correction of her records to show she did not request resignation from the U.S. Army Reserve in lieu of involuntary separation but was discharged due to medical unfitness was carefully considered. 2. Her medical records document she underwent neck surgery in 2008 and subsequently had numerous medical appointments related to pain management and physical therapy. However, there is no indication she had a permanent physical profile rating of 3 or 4, a diagnosis of a disabling condition that rendered her unable to perform the duties required of her area of concentration or grade, or a medical examination that warranted her entry into the PDES. Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. 3. The evidence of record shows she requested resignation in lieu of involuntary separation for moral or professional dereliction related to substantiated fraudulent charges filed on travel vouchers, failure to maintain a security clearance, and accrual of over nine unexcused absences from scheduled training. 4. Her administrative separation was accomplished in compliance with applicable regulations without procedural errors that would have jeopardized her rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009918 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009918 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2