BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160002687 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160002687 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: a. A permanent disability retirement vice being administratively separated. b. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by deleting the following entries and replacing them with entries consistent with a permanent disability retirement: * item 25 (Separation Authority) – "AR 635-200, paragraph 5-8" * item 26 (Separation Code (SPD)) – "JDG" * item 28 (Narrative Reason for Separation) – "Parenthood" 2. The applicant states: a. He was unjustly discharged under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8 (Involuntary Separation due to Parenthood); he contends he should have been given a permanent disability retirement instead. b. He served in the rank of staff sergeant (SSG)/E-6 and had multiple deployments to Afghanistan and Iraq. He attended the Ranger assessment and selection program, but he was "peered out" of the selection process. After this, he was assigned to a long-range surveillance (LRS) unit in a dedicated Ranger position. In less than a year, he became a jumpmaster, attended Special Forces assessment and selection, and was selected. c. While he was in the LRS unit, he began to have personal issues with his daughter's mother; this turned into a custody battle. He made his chain of command aware of his situation and they encouraged him to retain full custody. They also indicated he could be discharged under paragraph 5-8, AR 635-200. d. While in discussions with his chain of command about a discharge, he began to notice patterns in his own behavior: a lack of sleep, excessive drinking, and alternately feeling up, then down. He sought help from behavioral health specialists, who diagnosed him with post-traumatic stress disorder (PTSD), depression, and insomnia. They prescribed him medication and he continued to receive counseling both on and off post. e. During a command and staff meeting, his chain of command was informed he should be medically separated rather than separated under the provisions of paragraph 5-8. As a result of the medication he was being prescribed, he was deemed unable to perform hazardous duties and he was reflected as non- deployable. f. His unit was deploying to Arizona for training when he learned his grandmother was not doing well, and he needed to go home to Florida; he believed it could be the last time he saw her. He begged his chain of command to let him take leave for the weekend, but they denied his request. He left for Florida without permission. g. While he was at home, he was robbed and shot in the leg. His unit became aware of where he was and directed him to return immediately. He did as instructed and faced nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for his actions. He was reduced in rank from SSG to sergeant (SGT). Following the NJP, he was immediately "chaptered out" of the Army under paragraph 5-8. h. He was separated in January 2014, and, in less than a month, he was hospitalized for PTSD. Following his release from the hospital, he and his daughter had no place to go because he had not yet received his severance pay and unemployment compensation. i. He was hospitalized again for PTSD in July 2015, and with this, he lost his job as a truck driver. Medical professionals advised him not to work because of the medications he was taking, he could not continue his career as a truck driver. 3. The applicant provides: * DD Form 214 for the period ending 31 January 2014 * Army medical records, dated between September 2013 and January 2014 * Department of Veterans Affairs (VA) medical records, dated between March 2014 and December 2015 * undated letter, RE: Transportation Entitlement Extention (sic, extension) * document, dated 21 August 2015, titled, System TWT Transportation Driver Payroll Inquiry/Update * letter, dated 21 August 2015, from FH, a licensed mental health counselor, Subject: Transportation Services for [applicant] * letter, dated 24 August 2015, from Catholic Community Service, RE: [applicant] Request for Exception to Policy regarding final PCS (Permanent Change of Station) move of household goods * VA letter, dated 9 September 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 23 February 2005. He held military occupational specialty 11B (Infantryman) with special qualification identifier "V" (Ranger Parachutist). He served continuously through extensions and reenlistments, and was promoted to the rank of SSG on 1 August 2009. On 9 December 2011, he was assigned to Joint Base Lewis-McChord (JBLM). 2. His official military personnel file contains the following documents: a. Enlisted Record Brief with the following entries: * Section I (Assignment Information – OS (overseas)/Deployment Combat Duty) – deployments: Iraq (20050901-20060106); Afghanistan (20070115-20080415 and 20090825-20100902) * Section III (Service Data) – date of rank for SGT/E-5: 20140110 b. DA Form 4187 (Personnel Action), dated 12 September 2012, showing the applicant's duty status changed from confinement by civil authorities to present for duty effective 10 September 2012. c. DA Form 4856 (Developmental Counseling Form), dated 28 August 2013, showing the applicant's commander counseled him for not completing his family care plan. He was given 30 days to complete the required forms. In Part IV (Assessment of the Plan of Action), dated 2 October 2013, the commander noted the applicant did not complete his family care plan within the allotted 30 days; separation action was being initiated. d. Memorandum for Record (MFR), dated 1 October 2013, Subject: Request Voluntary Separation (Family Care Plan), wherein the applicant stated he was unable to adequately provide a family care plan. He requested separation from the Army. 3. On 18 November 2013, the applicant's commander notified the applicant in writing of his intention to separate him under the provisions of paragraph 5-8, AR 635-200 because he had failed to maintain a working family care plan. The commander indicated he intended to recommend the applicant receive an honorable character of service. That same date, the applicant acknowledged the notification. 4. An MFR, dated 9 January 2014, Subject: "AR 15 [applicant] AWOL Investigation," signed by the applicant's commander, essentially stated: * on 8 January 2014, the commander read the applicant his rights in order to question him about the circumstances surrounding his AWOL * the week prior to his AWOL, the applicant stated he was enrolled in an Advanced Résumé Writing course with ACAP (Army Career and Alumni Program) * he indicated this was a week-long class, running from 9 to 13 December 2013; when the commander called a senior ACAP leader, he was told the class did not exist * when confronted, the applicant argued; the applicant was sent to ACAP with his platoon sergeant, who affirmed the course was nonexistent * the applicant gave his commander wrong or misleading information about his flight to Florida; the commander was unable to confirm what he was told; and the applicant did not produce any proof of his flight 5. DA Form 4856, dated 10 January 2014, prepared by the applicant's commander, showed the applicant was counseled regarding an additional basis for separation and that the commander intended to change his recommendation as to character of service. While the original reason for separation was the applicant's failure to provide a family care plan, the commander stated he would add his misconduct of AWOL and making a false official statement. In addition, while his original recommendation was for the applicant to receive an honorable discharge, the misconduct caused him to change to a general discharge under honorable conditions. The applicant indicated he agreed with the counseling and signed the form. 6. On 11 January 2014, the applicant accepted NJP for being AWOL from 14 to 17 December 2013, and for making a false official statement with regard to his alleged enrollment in the Advanced Writing Resume course. The punishment included reduction to SGT. The applicant elected not to appeal. 7. On 13 January 2014, after consulting with legal counsel, the applicant submitted his separation elections. He: * acknowledged he had been advised of the bases for the contemplated separation action, had been informed of the rights available to him, and the effect of any action he took * waived consideration of his case by, as well as a personal appearance before, an administrative separation board * elected to submit a statement in his own behalf (not available for review) * understood he could expect to encounter substantial prejudice in civilian life if given a general discharge under honorable conditions 8. On 14 January 2014, the separation authority approved the commander's recommendation for separation and directed the applicant receive a general discharge under honorable conditions. On 31 January 2014, he was discharged accordingly. 9. His DD Form 214 shows he completed 8 years, 11 months, and 8 days of net active service. His rank was SGT, with a date of rank of 10 January 2014. a. He was awarded or authorized: * Iraq Campaign Medal with two bronze service stars * Bronze Star Medal * Army Commendation Medal (4th Award) with "V" Device * Army Achievement Medal * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon (2nd Award) * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * North Atlantic Treaty Organization Medal * Combat Infantryman Badge * Ranger Tab * Parachutist Badge b. Item 18 (Remarks) shows he received $15,634.31 in separation pay. c. Special Additional Information: * item 25 (Separation Authority) – AR 635-200, paragraph 5-8 * item 28 (Narrative Reason for Separation) – Parenthood 10. On 28 March 2017, the Army Review Boards Agency (ARBA) medical advisor provided a medical advisory opinion. a. The ARBA medical advisor was asked to evaluate the applicant's case to determine the following: * assess whether a medical retirement and/or separation through medical channels was warranted * evaluate whether the applicant's medical conditions were considered during separation processing b. In conducting this review, the ARBA medical advisor evaluated the applicant's application and the evidence submitted, military medical records, and VA medical records, both those provided by the applicant and those available through the VA's Joint Legacy Viewer. c. The ARBA medical advisor found: * the available record reasonably supported the applicant had PTSD while in military service * the record did not show the applicant's PTSD failed medical retention standards * the applicant did not reach the medical retention decision point (MRDP) for PTSD d. In addition to PTSD, the applicant met medical retention standards for the following medical conditions: * history of traumatic brain injury * headaches * tinnitus (ringing in the ears) * obstructive sleep apnea; using a CPAP (continuous positive air pressure) machine * hypercholesterolemia (excess cholesterol in the bloodstream) * hypertension * back/knee/ankle pain * vision problems * history of gunshot wound to left leg * pes planus (flat feet), existed prior to service e. The applicant's medical conditions were duly considered during separation processing. f. A review of the available documentation found some evidence of a medical disability or condition that would support changing the character of service or reason for discharge in this case. * the applicant's PTSD may have a nexus with regard to his AWOL; his AWOL contributed to the separation authority's decision to direct a general discharge under honorable conditions * the applicant's PTSD does not mitigate the misconduct which involved making a false official statement, nor is there a nexus for his failure to establish/maintain a family care plan for his daughter 11. On 29 March 2017, the applicant was provided a copy of the ARBA medical advisory for review and comment; no response was received. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-8 states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. No Soldier being separated under chapter 5 (Separation for Convenience of the Government) will be awarded a character of service under honorable conditions unless notified as to the specific factors in his/her service record that warrant such a characterization. 2. AR 635-40 sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment did 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. Chapter 4 provides guidance for referring Soldiers for evaluation by a medical evaluation board when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. DISCUSSION: 1. The applicant failed to establish and maintain a family care plan. Based on this, his chain of command initiated separation action under the provisions of paragraph 5-8, AR 635-200. 2. Before the separation authority acted on his discharge, the applicant went AWOL and made a false official statement, for which he received NJP. His chain of command properly notified him that his misconduct could result in a general discharge under honorable conditions. 3. All requirements of law and regulation appear to have been met, and the evidence indicates the rights of the applicant were fully protected throughout the separation process. 4. The applicant contends his PTSD should have qualified him for separation through medical channels, and he should have been medically retired. A review of all available medical documentation by the ARBA medical advisor did not support the applicant's assertion. The ARBA medical advisor determined the applicant met medical retention standards while on active duty and his chain of command appropriately considered his medical conditions during his separation processing. BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160002687 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160002687 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002687 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2