ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160013631 APPLICANT REQUESTS: * his under honorable conditions (general) discharge be upgraded to an honorable discharge * a change of his narrative reason for separation from pattern of misconduct to medical separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 24  October 2005 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), signed on 9 December 2005 * SF 400 (Chronological Record of Medical Care), dated 10 January 2006 * SF 600, dated 28 February 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 March 2006 * NGB Form 22 (Report of Separation and Record of Service), for the period ending 18 March 2006 * State of New York marriage license * State of Florida birth certificate * a fetal sonogram * Department of Veterans Affairs (VA) Form 21-0960C-10 (Peripheral Nerve Conditions Disability Benefits Questionnaire) * Florida State Security Agency license (three documents) * three identification cards related to firearms licenses FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His character of service and reason for discharge to be in error or unjust. b. While on active duty, he suffered from severe nerve damage to his upper back and shoulders. It was recommended he be medically discharged because he was no longer able to carry a rucksack. c. During training he witnessed on multiple occasions that his drill instructor was heavily intoxicated while having access to weapons and ammunition. He would storm around the barracks late at night yelling at new recruits and punishing them for no reason while smelling heavily of alcohol. Fearing the worst, the applicant reported the drill instructor on two different occasions. d. He had surgery on his lower back and was given written permission from his commander to convalesce at his home in NY. When he got home, he received a phone call from his drill instructor telling him to return to base immediately because he was absent without leave (AWOL). He explained that he had permission from the commander that he was holding in his hand. When he returned to base two weeks later, they asked him for the statement back to review and he never saw it again. e. He was then charged with AWOL and many times after that he was constantly being accused of things he did not do. f. On the day of his discharge, he questioned the narrative reason and character of discharge. He was threatened with being charged with disobeying a direct order if he did not sign the documents immediately. g. Since his discharge, he has had difficulty getting jobs with good pay and benefits because he can't account for the time he was in the Army without showing his DD Form 214. He won't be hired due to the character and reason for separation shown on his DD Form 214. h. His attempts to became a security officer with his own security agency had to be put on hold because the clients wanted a security agency that was led by someone with military experience. His character and reason for separation prevented him from obtaining clients. 3. Following prior service in the U.S. Marine Corps, the applicant enlisted in the Army National Guard on 30 December 2004. He was ordered to active duty for training on 26 January 2005. 4. The available medical records show: a. Commencing in February 2005, the applicant was treated for several conditions including surgical intervention for a pilonidal cyst, several minor medical problems, and limb-girdle dystrophy (commonly known as Rucksack Palsy). b. A 30 September 2005, Mental Health Status Evaluation cleared him to participate in any administrative or judicial proceedings. c. On 5 October 2005, the applicant was treated at the Portsmouth Naval Hospital due to suspicion of a limb-girdle dystrophy and afforded the diagnosis of Rucksack Palsy. d. An undated Walter Reed Army Hospital medical report opined that the applicant the probability that the applicant's shoulder problems were caused by the excessive or symmetric wearing of heavy packs during basic training combined with deconditioning from his cessation of his normal heavy body building exercise. He was referred for a Medical Evaluation Board (MEB). e. On 9 December 2005, an MEB found the applicant medically unacceptable due to bilateral thoracic root lesions (commonly called Rucksack Palsy). He was referred for a PEB. 5. The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice on: * 16 June 2005, for being AWOL for a period of 21 days * 19 July 2005, for disobeying a noncommissioned officer (NCO) and dereliction of duty on two occasions 6. The applicant received negative counseling statements on: * 21 June 2005, for failing to follow orders and for dereliction of duty * 24 June 2005, for again failing to follow orders and for dereliction of duty * 30 June 2005, for failing to return to his appointed place of duty * 19 September 2005, for being disrespectful towards an NCO and sleeping during duty hours * 22 October 2005, for failing to be at his appointed place of duty and failing to follow instructions * 2 November 2005, for not making his bunk as required and failing to follow instructions 7. On 5 May 2005, a non-transferable Report to Suspend Favorable Personnel Actions (FLAG) was imposed. 8. On 26 January 2006, his commander initiated separation proceedings for a pattern of misconduct. The commander recommended the applicant receive a general discharge. 9. On 2 February 2006, after consulting with counsel, acknowledged the proposed action and waived consideration by an administrative separation board contingent upon receiving a characterization of not less than under honorable conditions. He did not submit any statements in his own behalf. 10. A Memorandum for Record from the Office of the Staff Judge Advocate, U.S. Army Transportation Center and School, dated 24 February 2006, states: a. [The applicant] should be separated [in accordance with] IAW [Army Regulation] AR 635-200, paragraph 14-12b and he should not be processed through the physical disability system. This Soldier's medical condition is not the direct or contributing cause of his lengthy record of misconduct that led to the recommendation for administrative elimination. Furthermore, there are no other circumstances in this case that warrant disability processing instead of further processing for administrative separation. [The applicant] is being separated under the provisions of AR 635-200, paragraph 14-12b, which authorizes an Other Than Honorable discharge. b. His record of disciplinary action includes evidence of two nonjudicial punishments and six negative counseling statements. c. The Staff Judge Advocate opined that none of the misconduct was remotely connected to the applicant's medical condition. He is been diagnosed with Thoracic Root Lesions, otherwise known as Rucksack Palsy. This condition inhibits the Soldier's ability to transport heavy loads on his back. This condition does not have any affect on his ability to understand and follow instructions or to be present at his appointed place of duty. His condition does not compel the Soldier to be AWOL for 21 days, to be disrespectful towards noncommissioned officers or to disobey lawful orders. It is important to note that the Soldier's pre-service abuse of anabolic steroids, ephedra, caffeine, and other supplements contributed to his medical condition. 11. The Court-martial Convening Authority approved the separation directing the applicant receive a general discharge (GD) for a pattern of misconduct. 12. On 18 March 2006, the applicant was separated from active duty and from the ARNG. His DD Form 214 and NGB Form 22 show separation with a GD for a pattern of misconduct. 13. A medical advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. The advisor reviewed the applicant's available military personnel and medical records and VA medical records. Based on this review it was opined that: a. The applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. b. The applicant had completed Medical Evaluation Board/Physical Evaluation Board processing and was found fit for duty. c. An administrative discharge was appropriate under Army Regulation 635-200, paragraph 14-12, for a pattern of misconduct. d. The ARBA Medical Advisor recommended no changes to the applicant’s character or reason separation and processing through the Disability Evaluation System was not recommended. 14. A copy of the advisory opinion was forwarded to the applicant. He did not respond. BOARD DISCUSSION: After reviewing the submitted application and all supporting evidence, the Board found that the applicant’s medical condition did not justify or mitigate the misconduct. Additionally, at the time the misconduct and the actions of the command, the JAG Corps attorney opined that the actions taken by the command were appropriate and just. Therefore, the Board determined there to be no evidence requiring a correction to the applicant’s characterization of service or narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-33 (separation through medical channels) provides: (1) Except in separation actions under chapter 10 and as provided in paragraph 1-34b, disposition through medical channels takes precedence over administrative separation processing. (2) When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under Chapters 7, 14, or 15, does not meet the medical fitness standards for retention ,he/she will refer the Soldier to a Medical Evaluation Board (MEB) in accordance with AR 40-400 . The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB. (a) If the MEB findings indicate that referral of the case to a physical evaluation board (PEB) is warranted for disability processing under the provisions of AR 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's GCMCA and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined: (1) The Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. (2) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. b. Paragraph 14-3 (Characterization of service or description of separation) provides that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. c. Paragraph 14-12 (Acts or Patterns of Misconduct) provides that a pattern of misconduct consists of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. ABCMR Record of Proceedings (cont) AR20160013631 6 1