IN THE CASE OF: BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015483 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: 28 February 2017 DOCKET NUMBER: AR20150015483 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: 28 February 2017 DOCKET NUMBER: AR20150015483 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 record to reflect the reason for his discharge to the most favorable reason possible or to Secretarial Authority and to show his reentry (RE) code as "1." 2. He states he has designated a personal representative to speak for him. He states he is willing to appear before the Board if required. 3. He provides documents through counsel. COUNSEL'S STATEMENT, AND EVIDENCE: 1. Counsel states: a. The Army Discharge Review Board's (ADRB) change of the reason for the applicant's separation from commission of a serious offense to a pattern of misconduct was inappropriate, inequitable, unjust and an abuse of discretion because of all the administrative errors made by the chain of command and the fact that the command knew the applicant had suffered a concussion: * his physical disability was exacerbated by continued mandatory training * a counseling statement even acknowledged that he could not take care of himself b. The applicant wanted to deploy with his unit and expressed a strong desire to do so. He had demonstrated that he could overcome his difficulties and should have been given a chance to deploy or been provided a rehabilitative transfer. c. Dr. D____ (Exhibit 87) noted concerns of undue prejudice and acts of reprisal and concluded the applicant might benefit from a change of leadership. Dr. K____ recommended that involuntary separation be postponed until the applicant had cleared the traumatic brain injury (TBI) clinic. The entire chain of command, including the separation authority, failed in their duty to safeguard the welfare of those under their command as required by Army regulation. If transferred. new leadership could have successfully returned him to duty or separated him for physical disability 3. Counsel provides a 29-page brief (summarized above) and documents identified as Exhibits 1 through 98. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3 - year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 7 August 2008 the applicant enlisted in the Regular Army for 4 years for training in a bonus-eligible military occupational specialty (MOS). He completed training in MOS 68W as a medical specialist. 3. He arrived at his first duty station, the 115th Combat Support Hospital, in April 2009. 4. On 17 March 2010 a charge nurse reported by email to the company commander that the applicant had several times made inappropriate sexual comments and had visited inappropriate websites while logged in as other persons. 5. On 29 March 2010 the company commander initiated a non-transferable Report to Suspend Favorable Actions (Flag). 6. A 30 March 2010 MFR by the commanding officer relates that he had revoked the applicant's pass privileges until his conduct/behavior improved, but would approve leave if the applicant wished to apply. The applicant declined to apply for leave. The commander checked the address the applicant had provided on a pass request and learned that it was simply a bar with no living quarters attached. 7. The company commander, in a 7 April 2010 MFR, recorded that the First Sergeant (1SG) had previously noted that the applicant had: * failed the Army Physical Fitness Test (APFT) in November and December 2009 * lied to the commanding officer about having water * lost equipment, including a GORE-TEX jacket * acquired another Soldier's GORE-TEX jacket and had been counseled about theft * been found to have severely damaged his privately owned vehicle * lost his protective mask and cleaning kit * been removed from the combatives course for lack of learning and "wasting everyone's time" 8. On 8 April 2010 the applicant filed a Request for Redress under the provisions of Article 138, UCMJ, as a memorandum for the company commander. 9. On 9 April 2010 the company commander requested that an administrative separation package be prepared to separate the applicant for a pattern of misconduct. 10. The Post Commander, a brigadier general, replied to the applicant's Article 138, UCMJ, complaint on 3 May 2010. a. He agreed that the applicant's noncommissioned officers (NCOs) should not have required him to dump everything from his wall locker and indicated that they had been counseled. b. He agreed that the applicant should not have been questioned about "the medical equipment" without a self-incrimination warning and promised that the incident would not be used in approval of any elimination proceedings. c. He found that questioning about the applicant's underage drinking had a valid health and safety basis and were asked as part of a custodial interview conducted because he was suspected of a crime. d. The company commander's suspension of the applicant's pass privileges was within his authority and was not arbitrary or capricious. e. The brigade commander was within her authority in denying the applicant's requests to attend airborne school and transfer to an airborne unit. Denial of the request was within her authority and was not arbitrary, capricious, or an abuse of discretion. f. Finally, the general indicated that the applicant's Article 138 complaint and his own findings were being forwarded to Headquarters, Department of the Army (HQDA) for final disposition. 11. A Psychiatric Nurse Practitioner conducted a 2 June 2010 mental status evaluation (MSE): a. She found the applicant's behavior normal. He was fully alert and oriented to person, place and situation. He was anxious, but his thinking was logical and goal directed with no disturbances of perception, no hallucinations and no delusions. There were no memory impairments and no evidence of homicidal or suicidal thoughts or intentions. b. Her impression was that the applicant had the capacity to understand and participate in this evaluation and was mentally responsible. The evaluation did not reveal any psychiatric condition that would impair his ability to participate in administrative action. c. She reported a diagnosis of attention deficit/hyperactivity disorder (ADHD) (not diagnosed by her) and she noted social stress as an occupational stressor. d. The examiner remarked that the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command and recommended that he could be returned to duty without restrictions. 12. His 22 June 2010 separation medical examination noted: * a history of mild concussion from a 31 October 2009 motor vehicle accident * he was currently seeing a psychiatrist for help with his ADHD 13. A 30 June 2010 MFR noted the applicant's request for transfer had been denied. 14. The applicant withdrew his request for redress under Article 138, UCMJ, on 1 July 2010. 15. The applicant self-referred to the mental health clinic on 1 July 2010. Chandra M. K____, M.D., provided a diagnosis of history of attention deficit disorder, rule out post-concussion syndrome, and recommended referral to the TBI clinic for further evaluation. 16. Dr. G____, a psychologist, provided a four-page addendum on 7 July 2010. He noted the applicant was cleared for any administrative action deemed appropriate by the command. He indicated that the applicant's MSE was essentially normal. The applicant reported that between November 2009 and April 2010 he had been having problems consistent with those of individuals who had concussions. These included problems with balance, physical stamina, memory, mood swings, concentration, organizing thoughts, and finding the right words at times. He had headaches daily in February and March, but currently about once a week. The applicant was administered a series of tests that led to the overall conclusion that his functioning was in the low normal range. The psychologist noted that he had been diagnosed with a concussion and that this could have resulted in some impaired function which was multiplied by the stress. He concluded, "Although his testing showed some deficits it is believed that the deficits are due to impulsivity which is reported to have been long term, rather than any overall cognitive impairment. He does have a previous concussion, but reported no recent impairments." 17. The company commander notified the applicant that he intended to recommend separation with a general discharge for commission of a serious offense. He noted that the applicant had violated Command Policy Memorandum CSN-01 on diverse occasions between 4 January and 3 March 2010, was absent from his place of duty on 8 January and 3 February, had disobeyed an order from the 1SG on 14 January, failed to maintain positive control of sensitive items (his protective mask), made a false official statement to his commanding officer, disobeyed the order of a staff sergeant, made a false official statement to a sergeant, had been disrespectful to a noncommissioned officer on 12 March 2010, and had been apprehended by the commanding officer for underage drinking on 24 May 2010. 18. The applicant acknowledged receipt of the notification on 28 June 2010 19. The applicant consulted with counsel on 30 June 2010 and was advised of his rights. He reserved his rights and indicated that a statement in his behalf would be submitted. He acknowledged that he could expect to encounter substantial prejudice if he received less than a fully honorable discharge. He acknowledged he knew there was no provisions for automatic upgrades and, although he could apply to the ADRB and the ABCMR, approval of his requests was not guaranteed. 20. The company commander recommended the applicant be separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c (serious offense). 21. The applicant's assigned defense counsel submitted a 7 July 2010 memorandum to the 115th CSH's commander via the company commander. She asked that they consider the facts of the case as set forth. She also: a. maintained the case was legally defective because the 20 January 2010 offense of failing to maintain positive control of a sensitive item and the 8 January and 8 February offenses of absence from his appointed place of duty were not serious offenses; b. contended the evidence did not support several of the other cited instances because the applicant maintained he was held to a higher than normal standard and the two instances of making false official statements were actually just misunderstandings; c. asserted that the timing of all these incidents was significant because the applicant had incurred a TBI in November 2009, he got into trouble for the first time in January 2010 and his troubles were mostly over by mid-March; and d. posited that his most of his offenses were relatively minor and, regarding alleged underage drinking, company-grade nonjudicial punishment under the provisions of Article 15, UCMJ, was more appropriate, but his commander immediately recommended separation without any lesser action. 22. An 8 July 2010 memorandum for Commander/1SG, 115th CSH, from the Army Substance Abuse Program (ASAP) at Fort Polk indicated the applicant had been referred and had completed intake screening. Although no substance abuse diagnosis was obtained, the applicant appeared motivated to comply with the suggestions that he enroll in ASAP for abstinence monitoring while enrolled in Behavioral Health. 23. In an undated memorandum for the Commander, B Company, 115th CSH, subject: [Applicant's] Statement for Command in Reference to Chapter 14-12c, the applicant wrote: I accept full responsibility for my actions and respectfully ask my chain of command to view my behavior and poor job performance in the context of Dr. G____'s evaluation and the fact that I had suffered a concussion ([mTBI]) on 1 November and this injury was worsened by my participation in the combatives course and by my part-time boxing/mixed martial arts participation. I do not offer this as an excuse for my actions only as extenuating and mitigating factors as you make your final recommendation to COL D____ regarding the disposition of my chapter. On 1 November 2009 I was in a car accident and admitted to the emergency department…I was treated for a concussion for which I was given 2 days of rest via quarters. A week later I miserably failed my PT test and a few weeks after that I was enrolled in the Army combatives course and failed the course from lack of overall knowledge concerning the material. It is clear my lack of comprehension gave the impression that I did not care about the material. However, I was giving the class my best at the time and I could not keep up. I also engaged in some boxing and mixed martial arts periodically between early January and mid-March as a way to help me cope with the large amount of stress I was under at the time. At that time, I was experiencing frequent headaches and dizziness. I had a very difficult time concentrating and remembering details. I had a hard time sleeping, I was constantly tired [and] irritable and I was having a hard time "reading" people. I felt like I was in a mental fog, especially after combatives and I did not know why. Dr. G____ said I had several classic signs and symptoms of post concussive syndrome and my participation in combatives and subsequent boxing and [mixed martial arts] made things worse by not allowing my body time to heal. I can recall at least two occasions where 1SG C____ spoke with me privately and asked me if "everything was OK?" because I "seemed a little different." 1SG C____ also mentioned that I was having a difficult time following him at times, which was very true. I was struggling and did not want anyone to know. My job performance, ability to follow instructions as well as my attention to detail dramatically decreased and I was repeatedly counseled for being late to formations, being out of uniform, failing to bring the right equipment to training, leaving items in the break area, forgetting my water bottle, and other like issues. I had a difficult time maintaining my room cleanliness standards and following through on instruction given to me. I wanted to stay as far out of the limelight as possible especially after receiving a significant amount of corrective training by my [noncommissioned officer] chain of command so I often cut corners and when asked if I completed tasks to standard, I always responded "yes" even if I had not done the task to standard. Instead of communicating to someone that I was not myself, I decided foolishly to "soldier on" and since I could not put my finger on a cause for my poor performance, I wrongly decided to blame all of you for "picking" on me. It was easier for me to see myself as the victim rather than admit my own shortcomings as a Soldier and a person. I honestly believe that if I had made anyone in the room aware that I was having a problem or just not feeling right, everyone would everyone would have made every effort to help me and ensured that I received all the help I needed in every area whether medically or through teaching, coaching, and mentoring to ensure my return to duty and success. My pride and immaturity got in the way and I have suffered for it physically, professionally, and personally. My actions have had a significant and detrimental effect on my squad, platoon, and the company, and I take full responsibility for my own actions and I am deeply sorry to everyone here for becoming a huge and unwelcome distraction to this command as you prepare for war. Regarding my underage drinking, there is no excuse for my actions and I deserve to be punished appropriately. I respectfully ask that you consider Dr. G____'s evaluation as a factor of mitigation and extenuation…I believe the concussion was a contributing factor which had a detrimental effect on my behavior and subsequent poor performance, to what extent, I do not know and I accept full responsibility for my actions. I would like to remain in the Army and serve as a medic. I believe I can be rehabilitated and I believe I have demonstrated my ability to be rehabilitated. Additionally, Dr. K____ has determined that I am now fit for duty. If you recommend that I be eliminated from the service, I respectfully ask that in light of my injury, I receive an honorable characterization of service. 24. In an undated memorandum for the Commander, 115th CSH, subject: Rebuttal to Proposed Separation Under the Provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. Re. [Applicant], he indicated: a. He wanted to include in his rebuttal the previous statement he had provided to his chain of command, the statement written by his Trial Defense Services attorney, and the evaluation written by Dr. G____. He also wanted to present a statement directly to the commander under the open door policy. b. In essence, he reiterated what he had stated in his memorandum to his company commander and noted his chain of commands decision to promotion him in May 2010 as evidence that he had responded positively to rehabilitative efforts. He also noted he was meeting all standards of fitness and training at that time and was willing to serve in a hostile fire zone. He asked that the separation authority disapprove the request to separate him from the service and allow him to complete his enlistment. He also asked that, if the separation authority decided to separate him, his characterization of service be honorable in consideration of the effect his concussion may have had on his performance. 25. The separation authority waived rehabilitation and directed the applicant be separated due to commission of a serious offense with service characterized as general, under honorable conditions. 26. The applicant was discharged on 30 July 2010 in accordance with the separation authority's decision. He had completed 1 year, 11 months, and 24 day of creditable service. 27. In May 2013 the applicant prepared the 10 notarized statements (Exhibits 70 to 75 and 78 to 81) detailing his interpretation of what really transpired during the spring and summer of 2010. 28. On 2 September 2011, the ADRB denied the applicant's request for an upgrade of the characterization of his service, but determined he should be issued a new DD Form 214 showing he was discharged due to a pattern of misconduct instead of a serious offense. 29. On 10 February 2014 (AR20130012439), the ADRB considered the case and determined the characterization of his service should be upgraded to honorable. As a result of the ADRB decision, he was reissued a DD Form 214 showing in: * item 24 (Character of Service) – honorable * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12b * item 26 (Separation Code) – JKA * item 27 (RE Code) – 3 * item 28 (Narrative Reason for Separation) – pattern of misconduct REFERENCES: 1. Army Regulation 27-10 (Military Justice), chapter 19 provides the Army procedures for handling Soldiers' complaints against their commanding officers under Article 138, UCMJ. Article 138, UCMJ, states: “Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.” 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. a. Specific categories include: (1) minor disciplinary infraction: * a pattern of misconduct consisting solely of minor military disciplinary infractions * a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline (2) commission of a serious offense * a military or civil offense is serious if the specific circumstances warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial * abuse of illegal drugs * returned from absence without leave or deserter status (under certain conditions b. Separation under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 3. Army Regulation 635-200, paragraph 5-3, provides for separation under Secretarial plenary authority. Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee (to include the ABCMR) as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. 4. The Table of Maximum Punishments of the Manual for Courts Martial shows a punitive discharge is authorized for willful disobedience, failure to obey a lawful order, violation of a lawful general regulation, breaking restriction, and losing government property worth more than $100 value. 5. The Separation Program Designator (SPD) code associated with discharge as a result of a pattern of misconduct is JKA. RE codes are assigned based on SPD codes. The RE code 3 is associated with SPD code JKA. DISCUSSION: 1. The applicant requests correction of his record to reflect the reason for his discharge to the most favorable reason possible or to Secretarial authority and to show his RE code as "1." 2. The ADRB upgraded the characterization of the applicant's service to honorable, but determined the reason and authority for his separation (and the associated RE code) were equitable. 3. The evidence shows the applicant had engaged in a pattern of misconduct. It is unclear to what degree that misconduct may be attributed to mTBI or post-concussion syndrome. During his separation processing, he was examined by a psychologist. The psychologist, Dr. G_____, found that the applicant's deficits were due to impulsivity, which was reported to have been long term rather than due to any overall cognitive impairment. The available evidence does not appear to show that behavioral problems related to mTBI or post-concussion syndrome were solely to blame for his pattern of misconduct. 4. Secretarial plenary authority is used when no other provision of Army Regulation 635-200 applies. 5. If the Board determines there is no basis for changing the reason for the applicant's discharge, there will be no basis for changing his RE code. The RE code he was assigned is correct based on the reason for separation and SPD code currently shown on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015483 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015483 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2