ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20160014128 APPLICANT REQUESTS: a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Letter of support * Documents from Department of Veterans Affairs (VA) * Excerpt of Army Regulation 635-200 * Medical Documents * Noncommissioned officer evaluation report (NCOER) * 4 DA Forms 3356 (Board Member Appraisal Worksheet * Army Discharge Review Board (ADRB) Case (AR20140019546) * Army Commendation Medal (ARCOM) Certificate 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. He was diagnosed with post-traumatic stress disorder (PTSD) while at Walter Reed Hospital and kept there for a month. The doctor stated he had PTSD and should be medically discharged. His command told him they were flying him to his duty station in Germany to be out-processed. He was actually flown back to Iraq and told it was the best way to get him out so he could get the help he needed. He was given and under other than honorable conditions discharge (UOTHC). b. After speaking with the General who signed off on his discharge stated he made a mistake and if he had been more informed he would not have signed off on his paperwork. He was diagnosed by the VA with PTSD; however, he cannot get help because he has an UOTHC discharge. He was an outstanding NCO and then three months later he was discharged for misconduct. c. He joined the Army in November 2001 and was stationed in Germany in 2002. In October 2003, he was deployed to Kosovo. During his 6 month deployment Operation Iraqi Freedom (OIF) was launched and his unit was extended by 3 months. In 9 months he was promoted twice, from specialist (SPC) to corporal (CPL) and then to Sergeant. He was awarded his own squad due to his leadership abilities as well as professionalism. He was awarded the Army Commendation Medal (ARCOM) twice during this deployment, one as an Impact award from a General Officer. After returning to Germany, he was selected to represent the Army in a World expo held in Germany and was awarded an Army Achievement Medal. On 14 February 2005, he was sent on an advance party to OIF into the heart of Iraq. His unit was almost immediately thrown in to combat. Every day they were mortared. The first death he witnessed was of a young staff sergeant (SSG) from another unit who was hit by an improvised explosive device (IED). It became more and more often they would get mortared and subject to everyday shelling from insurgents. He kept a journal of all the events that would take place. d. On 8 April 2004, I.M.N was hit by a lED while they were on patrol and taking small arms fire. He lived just across the hall from him in the barracks. They had just went out for a beer the day before they left for IRAQ. He was only 20 years old. Everyday death was more and more around them. Later that month, he was talking with a specialist who was in his company and lived next to him. He was telling him how he was going to leave Iraq after his tour and get married to his fiancée. On 20 April 2004, while they were on patrol SPC K was hit by an IED and was killed. When they got back to Base Camp, Soldiers were being checked out at the clinic and he was cleaning brain matter and bone fragments from SPC K’s weapon to be turned in to the armorer. On 29 April 2004, he and captain (CPT) K were talking about what they would do when they got back to the States. CPT K told him he was going to go back home to Virginia and get out of the Army. On 8 June 2004, CPT K was killed. e. He went to talk to the Chaplain but was told to come back at another time because he was busy. He asked for help from the doctors that were there and was told he should be sent back to Germany for an evaluation; however, the Commander stated that would send the wrong message to the other Soldiers (that it was ok to be weak). He was then sent to another base camp about 10 minutes away in a more hostile area. While there, he was given a negative NCOER. He had just received an NCOER that was very positive just three months before. f. On 14 June 2004, his father passed away and he went home on Emergency Leave. While heading back to Iraq, his flight was delayed in Washington DC so he took a taxi to Walter Reed hospital to visit his friend who was hit by a lED in Iraq. SSG D was in a comma and he talked with his parents outside of the room where he was. He was allowed to go into the room and see him. He broke down seeing him hooked up to all of the machines and he lost it. As he was leaving the Hospital a doctor saw him outside crying and asked him to come in to the hospital and talk to him. After talking to him he was admitted to the Psychiatric ward. He was there for about a month. The doctor s recommended he be discharged under medical reasons for the good of the Army. He was processed for discharged at Waiter Reed. The very next week he was told his Commander wanted him to go back to Germany to clear. He was put on a plane and flown to IRAQ, once in IRAQ, he was not allowed to have a weapon and was escorted to the bathroom. He was told by the commander he should just sign all the papers and say nothing. He was told they would get him out of Iraq as quickly as possible so he could get the help he needed. He did what he was told. g. He was discharged discharge was characterized as UOTHC and he cannot get the help he needs from the VA. About a year ago, he found the General who signed off on his paper work. He called and explained everything in this letter and was told that if the General had known this then he would have never signed the discharge. He is 43 years and has a loving wife who is also a disabled Veteran. He has never been arrested. Hs is asking that his discharge for his period of service from 2001-2004 be upgrade to Honorable due to medical reasons. 3. The applicant was counseled on numerous occasions from 25 April 2004 to 25 August 2004 regarding his behavior. 4. The applicant accepted nonjudical punishment on the following occasions: * 24 May 2004, for being disrespectful on or about 24 April 2004 * 20 August 2004, for being absent with authority from on or about 7 July 2004 through on or about 26 July 2004 5. A Report of Mental Status Evaluation, dated 7 June 2004, states in part, the applicant appears to be overstating his symptoms, but he also has some depressive symptoms. He has a Personality Disorder NOS, with antisocial, narcissistic and histrionic traits. 6. A Report of Medical Examination, dated 23 July 2004, states the applicant is unfit for duty and he had a psychiatric profile of 4. 7. A Report of Mental Status Evaluation, dated 26 July 2004, shows he was diagnosed with Adjustment Disorder with Mixed Disturbance of Emotion and Conduct; however, he was cleared psychiatrically for any administrative action deemed appropriate by command. 8. On 10 September 2004, his company commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. The commander stated the reasons for the proposed action was based on the applicant’s failure to conform to military standards of conduct as shown by his disrespect towards a senior commissioned officer, insubordinate conduct towards a senior noncommissioned officer, communicating a threat, wrongful impersonation of a noncommissioned officer, and for being absent from his unit. He was informed of his rights and acknowledged notification of receipt. 9. After consulting with counsel, he elected not to submit statements in his own behalf and waived his right to counsel. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a discharge/character of service which was less than honorable was issued to him. 10. On 17 September 2004, the separation authority approved the separation recommendation and directed the issuance of a UOTHC discharge. On 25 September 2004, he was discharged in accordance with the authorized official’s decision. 11. On 23 February 2016, the ADRB voted to upgrade the applicant’s UOTHC discharge to a GD. 12. The applicant provides and unsigned letter from the separation authority, Major General B, dated 12 December 2016, addressed to the applicant, which states he would have never signed off on the applicant’s paperwork for misconduct without a thorough review if he had known then what he now knows. 13. On 16 December 2016, the ABCMR obtained an advisory opinion from a Clinical Psychologist with Army Review Boards Agency (ARBA), who states, in part, based on a review of the applicant's available service treatment records, the applicant has mitigating behavioral health condition and a referral of the applicant's record to IDES for possible Medical Evaluation Board is warranted A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. 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. Specific categories include minor disciplinary infractions (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), commission of a serious offense, and convictions by civil authorities 15. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (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 office, grade, rank, or rating. 16. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. A physical profile rating of "3" or in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E-eyes, S-psychiatric) is a basis for referring a Soldier to the PDES. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The Board agreed the applicant received a P4 Profile and should have entered the PDES process without proof a GCMCA considered his medical condition during the administrative separation process. Recommend referral to the OTSG. The Board did not consider an upgrade of the discharge characterization from UOTHC to something higher, since the discharge was upgraded by the ADRB prior to the review of this case. If the PDES process concludes the applicant will receive a medical discharge, his characterization will reflect honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (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), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a GD if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of regulation. b. Paragraph 3-7a provides that an HD is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 3. 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 or not 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 either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. c. The mere presence of a 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 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. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 5. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. A physical profile rating of "3" or in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E-eyes, S-psychiatric) is a basis for referring a Soldier to the PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014128 2 1