ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 April 2019 DOCKET NUMBER: AR20170005138 APPLICANT REQUESTS: * medical disability retirement or reinstatement for medical evaluation board (MEB) processing * rank restoration to sergeant (SGT)/E-5 * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records) * Approximately 700 pages of military personnel and medical records, and Department of Veterans Affairs (VA) records FACTS: 1. The applicant defers to counsel. 2. Counsel provided a 45-page brief explaining the circumstances of the applicant's case and pointing out the errors and or injustices that occurred during the applicant's separation process. Counsel also contends the following: * the applicant's medical condition required medical extension orders for Integrated Disability Evaluation System (IDES) processing * the applicant's MEB process was wrongfully terminated * the Rhode Island Army National Guard (RIARNG) wrongfully allowed a Soldier pending a personnel action to reach her expiration term of service (ETS) * the RIARNG violated the applicant's rights while administering nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) * the applicant's right to consult with counsel while deciding on the disposition of her alleged misconduct was violated * the applicant was not provided proper notice and was denied the right to inspect all evidence prior to the hearing as required by the statute and manual for courts-martial * the applicant was not afforded the opportunity to consult counsel, accordingly her elections in block 3 of DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) are invalid * the applicant's hearing was not administered in strict accordance with promulgated regulation * the applicant's appeal was not heard * the applicant's reduction in grade was pursuant to the invalid NJP and must be reversed * the applicant's Article 15 proceeding cannot be used as evidence to support a subsequent separation action, nor used to terminate her MEB * the applicant's record supplemented by the VA ratings decision is dispositive for a finding of medical retirement * the applicant was diagnosed with conditions that did not meet retention standards and were unfitting conditions at the time of her separation 3. Following active duty service in the Regular Army and service in the U.S. Army Reserve (USAR) Control Group (Reinforcement), the applicant served in the RIARNG from 14 October 2000 to 13 October 2005. She reenlisted in the RIARNG on 24 March 2006 for a period of six years. She was promoted to the rank and grade of SGT/E-5 effective 6 November 2008. 4. The applicant's record contains DD Forms 214 (Certificate of Release or Discharge from Active Duty) that show she served in Iraq from 13 December 2007 to 13 September 2008 and in Kuwait from 20 November 2010 to 15 May 2011. 5. A DA Form 3349 (Physical Profile), dated 13 March 2012, shows the applicant was issued a permanent physical profile based on a diagnosis of depression and shoulder, back, and ankle pain. This form also shows she did not meet retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, and that she requireded an MEB. 6. On 20 March 2012, the applicant extended her 6-year enlistment in the RIARNG for one year. Her new ETS was established as 23 March 2013. 7. A memorandum from the U.S. Army Reserve Components Soldier Medical Support Center (RC-SMSC), dated 8 August 2012, shows the applicant's MEB packet was received by the RC-SMSC. 8. A memorandum from the Rhode Island National Guard Joint Force Headquarters, Counterdrug Coordinator, dated 22 January 2013 and addressed to the applicant's immediate commander, shows that during a mandatory drug testing conducted in accordance with AR 600-85 (The Army Substance Abuse Program) on 1 December 2012, the applicant was tested and found to be clinically positive for marijuana and dextroamphetamine. The applicant's commander was instructed to: a. Counsel the applicant and direct her to contact a state-certified substance abuse treatment facility. b. Initiate a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)). Favorable personnel actions are suspended until proof of satisfactory rehabilitation is received by the Deputy Chief of Staff for Personnel or until separation processing is complete. c. Initiate administrative separation in accordance with AR 135-178 (Army National Guard and Reserve Enlisted Administrative Separations) because commanders must initiate a separation action on all Soldiers who test positive for an illegal substance. 9. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows that on 3 February 2013, the applicant accepted NJP under the provisions of Article 15, UCMJ, for wrongful use of marijuana. The DA Form 2627 also shows the applicant, having been afforded the opportunity to consult with counsel and understanding her rights, elected the following: * did not demand trail by court-martial * requested a closed hearing * did not request a person to speak in her behalf * to present in person matters in defense extenuation and/or mitigation 10. The DA Form 2627 further shows that the imposing commander, having considered all matters presented in a closed hearing, found the applicant guilty of all specifications. The punishment consisted of reduction to the rank of specialist (SPC)/E-4. The applicant indicated her intent to appeal and submit additional matters. However, the DA Form 2627 does not show she submitted an appeal or that an appeal was considered. 11. On 3 February 2013, the applicant's immediate commander notified her that he was initiating action to separate her from the ARNG under the provisions of AR 135-178, paragraph 12-1(d), for abuse of illegal drugs, based on a positive urinalysis test for marijuana. The commander stated he was recommending a general, under honorable conditions characterization of service. The commander also informed the applicant that he was suspending the separation action for 45 days to give her the opportunity to exercise her rights to: * consult with military counsel of her choice or civilian counsel at her own expense * obtain copies of documents that will be sent to the separation authority supporting the basis for the proposed separation * to request a hearing before an administrative separation board * present statements in her own behalf * waive her rights in writing 12. The applicant acknowledged receipt of the notification of separation proceedings on 3 February 2013. She waived her right to consult with counsel and her right to a hearing before an administrative separation board. 13. In a memorandum dated 7 March 2013, the applicant was informed by the Rhode Island National Guard, Deputy G1, that her entitlement to an MEB was terminated in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation, paragraph 4-3, which states that enlisted Soldier may not be referred for, or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. The applicant was advised she was entitled to pursue disability compensation through the VA. 14. Orders issued by the Rhode Island National Guard Joint Force Headquarters on 15 March 2013, directed the applicant's honorable discharge from the ARNG and as a Reserve of the Army effective 23 March 2013. 15. On 29 November 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant did not meet medical retention standards for depression. The advisory also found that based on the information available for review at the time, the applicant had a mitigating behavioral health condition for her drug abuse offense. She separated at ETS date (with an honorable characterization) before administrative separation for misconduct could be effected [with a corresponding general under honorable conditions characterization and 'Misconduct (Drug Abuse) authority and reason for separation, typical of such UCMJ offenses]. Consideration of underlying behavioral health condition(s) for the purpose of potential mitigation when reviewing cases of misconduct is required. In this applicant's case, her timely ETS separation date precluded a negative administrative separation for misconduct (with a very likely unfavorable characterization as well as unfavorable authority and reason). There is no medical indication for resumption of Physical Disability Evaluation System (PDES) processing in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant and counsel were provided a copy of the advisory opinion and given an opportunity to submit comments. Counsel responded and provided the following documents: * 4-page rebuttal letter * 13-page Neuropsychiatric Review and Evaluation/Independent Medical Evaluation pertaining to the applicant * VA Rating Decision 17. In the 4-page rebuttal letter, counsel argued the following: a. Without a basis to do so, and the medical advisory opinion admits the defect, the Rhode Island National Guard prematurely terminated the applicant's MEB. b. Brazenly, the author of the medical advisory opinion relies on the accuracy of "adjustment disorder" diagnoses when the validity of such opinions must be viewed with particular skepticism based on the facts of this case and in light of Army's often defective and well-documented disability processing. The applicant suffered from this same abuse here. c. AR 135-178, paragraph 1-10, provides that processing under the Integrated Disability Evaluation System (IDES) takes precedence over administrative separation action when the MTF commander, attending medical officer, or profiling officer determines that a Soldier has a medical condition that may not meet the medical fitness standards for retention of AR 40-501. For purposes of this paragraph, processing under the IDES means referral of the Soldier to an MEB under the provisions of AR 40-400 (Patient Administration) or AR 635-40, as applicable at the time of referral, and when the MEB determines the Soldier does not meet medical retention standards, referral of the Soldier to a PEB under the provisions of AR 635-40 (emphasis added). Yes, the alleged misconduct and administrative separation board may proceed but the separation authority must, in writing, decide whether the medical condition "was the direct or substantially contributing cause" of the misconduct. (AR 135-178 paragraph 1-10(b)(4)). d. This process was absent in this case and the separation authority was not presented with a completed MEB. Indeed, the Rhode Island National Guard ensured that the MEB was withdrawn and the applicant's packet was literally recalled from the Pinellas Park Army Office dedicated to reviewing medical processing packets. 18. A copy of the complete rebuttal to the medical advisory and the additional documents were provided to the Board for their review and consideration. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Based upon the enclosed medical advisory finding that no evidence of a medical disability or condition warrants a change to the character or reason for the discharge, the Board concluded that relief was not warranted. 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. 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. AR 135-178 provides for the separation of enlisted personnel of the Army Reserve and ARNG. The version dated March 2007, paragraph 1-9 provides that: a. Disposition through medical channels takes precedence over administrative separation processing b. When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 7 (paragraph 7-4 (Fraudulent enlistments or reenlistments)), 10 (Homosexual Conduct), or 12 (Misconduct) does not meet the medical fitness standards for retention (AR 40-501, chapter 3), he or she will refer the Soldier to an MEB in accordance with AR 40–400 (Patient Administration), chapter 7. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB. c. If the MEB findings indicate referral of the case to a 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 General Court Martial Convening Authority (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 it has been determined that: (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. d. The authority of the GCMCA to determine whether a case is to be processed through medical disability channels, or under administrative separation provisions, will not be delegated. e. The GCMCA’s signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB. Copies of the GCMCA’s decision will be furnished to the unit commander and will be included in the administrative separation proceedings. The unit commander will suspend processing of the administrative separation action pending the PEB. If the Soldier is found physically fit, the administrative separation action will be resumed. If the Soldier is found physically unfit, the administrative separation action will be abated. 2. AR 135-178, paragraph 12-1 states a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service by reason of abuse of illegal drugs. Discharge action normally will be based upon commission of a serious offense. Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted. a. First-time drug offenders: Soldiers in the grade of SGT and above, and all Soldiers with 3 or more years of total military service Regular and Reserve will be processed for discharge upon discovery of a drug offense. b. Second-time drug offenders must be processed for discharge after a second offense. 3. AR 40-501 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. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 635-40 establishes the 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. It provides for an MEB that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. 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 service. a. Paragraph 2-1 provides that the mere presence of impairment does 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. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 4-3 (Enlisted Soldiers subject to administrative separation) states that except as provided below, an enlisted Soldier may not be referred for, or continue, physical disability processing, when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, signed by the GCMCA, must be forwarded with the disability case file to the PEB. A case file may be referred in this way if the GCMCA finds the following: (1) The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions. (2) Other circumstances warrant disability processing instead of alternate administrative separation. 5. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. Paragraph 3-28 describes setting aside and restorations. a. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. b. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. c. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 6. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his or her duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings ABCMR Record of Proceedings (cont) AR20170005138 6 1