ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170006165 APPLICANT REQUESTS: reconsideration of his earlier request for correction of his records to show he was discharged by reason of permanent disability vice misconduct (serious offense). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored Statement * Medical Records documents * List of Evidence for consideration * General Court-Martial Stipulation of Fact * Orders C1-071-007 * Office of the Deputy Chief of Staff (CofS), G-1 Letter * Personnel Control Facility (PCF) Letter * Headquarters (HQ), US Army Garrison (USAG) Fort Sill, OK Letter * Arizona Department of Economic Security, Unemployment Insurance Administration Notice * HQ, US Army Medical Department Activity (MEDDAC) Fort Sill Letter * Department of Veteran Affairs (VA) Letter * Social Security Administration, Office of Disability Adjudication and Review Notice FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160000395 on 20 September 2016. 2. The applicant provided: a. A self-authored statement that states that he read the narrative from the Board. He makes the following attempt to identify new issues that were not covered in areas that he feel the Board missed and/or misquoted or misunderstood. In the past five years, the Army’s decision to ignore medical and mental health issues and direct all problems into a legal response which has prevented many opportunities for healing both mentally and physically. As a Soldier, his medical providers were not allowed to provide treatment. As a veteran, his complex medical and mental health issues were dumped into the VA system where providers were unprepared to accommodate imminent and complex medical diagnosis that would have normally been treated pre-discharge or transitioned into the tricare system. b. In reading the evaluations and responses from the Board, he sees misinterpreted, manipulated, or completely ignored physical and mental health issues. The Board focused on a crime that he took responsibility for, went to prison for, and should have been allowed to move beyond. This Board actually ignored medical issues to the extent that it turned a well-researched, referenced, and thorough evaluation from the Surgeon General's office into a case of "opining." c. He spent weeks telling his command and criminal investigation division (CID) that he did not take a pair of night vision goggles (NVG). At the time, he was working with the Soldiers who did steal them to get the NVGs back. He did not turn the men in because he was concerned that the investigation was focused on discharging his men, rather than retrieving the goggles. As the investigation progressed, he was continually pushed to say he was part of the theft. After the men he was trying help were discharged for drug use, he went to the local police and CID and told them the whole story. Instead of concern for returning the NVGs, CID was completely focused on pushing him to confess. So, he found the drug dealer, made him give him the NVGs, and turned them in to a representative of the arms room, but this seemed to just make things worse. Every few days, CID would pull him in and question him for hours, while under extreme duress, while dealing with kidney stones, on medications for depression, sleep deprivation, and pain. He took responsibility for the crime. From that moment on, the command considered his statement of guilt factual, even though dates of the theft and facts did not add up. Months later, when charges were finally presented, Lieutenant Colonel BMB called him out his name. He actually had him drug tested again. He was told by CID and his lawyer that he was going to jail, no matter what, because he withheld information about the NVGs and he signed reenlistment documents that he did not include high-school drug use, as they had on my first enlistment. He was advised by council that he should take a plea deal. d. Furthermore, during the court-martial, the judge threw out the high school drug and reenlistment issue and stated that it was not within the prosecution’s jurisdiction. The judge asked him if he was coerced in any way. He responded, "Yes", but no one bothered to acknowledge his statement and his lawyer advised him not to change from his plea deal or he would be charged with perjury. In discussing a sentence with the judge, it was agreed that he would accept more time in confinement in exchange for the opportunity to stay in the military. In the judge's decision, he was not demoted, not discharged, and no pay lost. He was allowed to transition to another station. e. While in the Miramar brig, he was willing to sacrifice his health for the good of the unit but he realized the extent of damage his deployments had affected him both mental and physically and that he would probably never withstand the requirements of combat again. f. On entering Fort Sill there were no opportunity for rehabilitation, a requirement of chapter 14, was offered. Instead, he was immediately placed in a second judgment phase that removed all opportunity for medical treatment. It was only through the tireless efforts of medical and mental health professionals, caseworkers, his family, and government officials that he was allowed the opportunity to be appropriately diagnosed for combat injuries. Army medical and mental health providers were placed in an unethical position. They knew what care needed to be provided, but were denied the opportunity to actually provide the care. Additionally, command decisions to ignore and deny care put medical providers in a position of breaking HIPAA laws to explain command's medically inaccurate interpretations of his mental health and medical status. In defense of his medical situation, he was branded a criminal, and, therefore, untrustworthy to report his own medical needs accurately. g. Medical records documents that were dated from 27 February 2008 to 12 January 2017 at various facilities and locations. Included in the records is a self-authored list of things that the applicant stated were overlooked, misinterpreted and misquoted, such as second post-traumatic stress disorder (PTSD) and the first traumatic brain injury (TBI) diagnosis. h. The General Court-Martial Stipulation of Fact with a date of 28 December 2012, in part, with highlights and noted in red by the applicant in reference to the charge of larceny on 9 July 2012 of a pair of night vision devices (NVD). He stated: * these things aren't small; Mr. X__ would have had to have a bag * Mr. X__ was checking to confirm NVDs were there, they were not, previous inspection was not accurate, Mr. X__ did not 100% check on return from Afghanistan * both Mr. X__ and Mr. X__ were chaptered after drugs were found in their barracks * no action was taken against the drug dealer for the purchase of the NVDs * no urine test on 31 May, 10 May urinalysis was not a drug screen, 10 May urology follow up, kidney stone in Afghanistan, removal ordered just finished Percocet and naproxen, * 24 May seen for depression and sleep disorder, 29 May seen by mental health, active medication, Ambien and Prozac i. The unit commander designated by order C1-071-007, dated 12 March 2013 a representative to clear the applicant from the installation. j. The Deputy Chief of Staff, G-1 by letter to Ms. SG (the mother of the applicant) on 17 November 2014, informing her that the applicant’s chain of command is reviewing the matter in consultation with both the medical and personnel community to determine the most appropriate way ahead in accordance with all applicable laws and policy. k. HQ, U.S. Army Garrison, Fort Sill, by letter to Ms. X. on 3 March 2015, informed her that the applicant was court-martialed for various offenses resulting in 24 months confinement at Fort Leavenworth, KS. Action was initiated to discharge the applicant for the Army for a serious crime. He was afforded all the rights and privileges afforded him under applicable Army regulations. He consulted with his trial defense counsel and voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a general, under honorable conditions discharge. l. The Arizona Department of Economic Security notice to the applicant on 1 May 2015, informed him that he was not eligible for unemployment insurance from 12 April 2015 until eligibility conditions are met. m. HQ, U.S. Army MEDDAC by letter on 28 October 2015 to whom it may concern stated that unfortunately due to the applicant’s chapter discharge being pursued the applicant has not begun most of his treatments. They recommended that the applicant not be chaptered. He was not cleared by the behavioral health for the chapter due to his ongoing issues. n. The VA by letter to Ms. XX, dated 10 February 2016 approved her as the primary family caregiver. o. The social security administration notice of decision to the applicant on 18 November 2016, fully favorable for benefits. 3. A review of the applicant’s record shows: a. He enlisted in the Regular Army (RA) on 23 August 2005. He was honorably discharged on 7 September 2009. He reenlisted in the RA on 2 June 2010. b. General Court-Martial Order Number 8 dated 14 May 2013 reflects that on 29 January 2013, he was convicted by a general court-martial and sentenced to confinement for 33 months and the convening authority approved only so much of the sentence extending to confinement for 24 months for specifications of: * stealing a pair of night vision devices (NVD) on or about 25 June 2012 * wrongfully introducing some amount of heroin onto a vessel, aircraft, vehicle, or installation used by the Armed Forces and under the control of armed forces between 12 April and 30 May 2012 * wrongfully possessing some amount of heroin on divers occasions between on or about 12 April and 30 May 2012 * without proper authority, disposing of by giving to a civilian a pair NVD * making a false official statement, with intent to deceive to CID Special Agent (SA) on 23 July 2012 to wit he did not take the NVDs * making a false official state, with the intent to deceive to SA SK on 25 July 2012 to wit he did not take the NVDs * signing an official record, on or about 5 May 2010 with the intent to deceive, to wit: Standard Form 86, July 2009, security clearance application which record was false, he reported that he never use or possessed any controlled substance * wrongfully using heroin on drivers occasions between on or about 12 April 2012 and on or about 30 May 2012 c. On 29 January 2013, he was reduced to E-1/PVT and assigned to the PCF, Fort Sill, OK, and was confined at the Naval Consolidated Brig (NAVCONBRIG), Miramar, CA. Appellate review was not available. d. The DD Form 2697 (Report of Medical Assessment), dated 25 August 2014, shows the examining physician annotated that the applicant was not referred for further evaluation. e. The DD Form 2808 (Report of Medical Examination), dated 28 August 2014 shows the applicant underwent a medical examination for separation and the examining physician annotated that the applicant was qualified for service and a chapter 14. f. On 26 September 2014, the DA Form 3822 (Report of Mental Status Evaluation) shows he had a mental evaluation for the purpose of clearance for administrative separation under Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14. Noted in Section VIII, the applicant required more assessment before a determination of behavioral health clearance is made. It appeared that the applicant needed a medical evaluation board (MEB) but that decision was not finalized. g. On 6 October 2014, the applicant’s immediate commander notified him of his intent to initiate action to discharge him under provision of AR 635-200, paragraph 14-12c for a serious offense. He recommended he receive a general, under honorable conditions characterization of service. The approving authority could decide to retain him in service, suspend the execution of the discharge, or recommend he receive an under other than honorable conditions characterization of service. He had the right to consult with the trial defense service or military counsel of his own choosing and had the right to submit written statements in his own behalf. h. On 6 October 2014, the applicant acknowledged receipt of the commander’s intent to initiate separation action against him. He consulted with legal counsel who advised him of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. i. After consulting with legal counsel, he submitted a request for a conditional waiver on 22 January 2015. j. On 29 January 2015, the approving authority accepted the conditional waiver and approved the discharge request. He directed the applicant be immediately processed for discharge and directed that he received a general, under honorable conditions characterization of service. k. He was discharged on 3 February 2015 by Orders Number 034-1312. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged under the provisions of AR 635-200, chapter 14-12c, for misconduct for a serious offense with a general, under honorable conditions discharge. * He completed 3 years, 1 month, and 12 days of active service this period and had lost time from 29 January 2013 to 19 August 2013 due to confinement * His DD Form 215 (Correction to DD Form 214), dated 4 December 2015, shows item 12a (Date Entered Active Duty This Period) was changed to 2 June 2010 and item 12e (Total Prior Inactive Service) was changed to 8 months and 25 days. 4. On 29 October 2018, the Army Review Boards Agency clinical psychologist reviewed the applicant's reconsideration. Based on a thorough review of available medical records, she found that there is evidence the applicant was not medically or psychiatrically cleared for administrative separation. Medical evaluations indicated his behavior health perspective and based on a worsening of symptoms, it is recommended that a Medical Evaluation Board (MEB) be considered. 6. On 1 November 2018, the applicant was provided the advisory opinion and given an opportunity to respond. He did not respond. 7. By regulation (AR 635-200), Soldiers are subject to separation under the provisions of chapter 14 for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 8. By regulation (AR 635-40), the mere presences of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating: BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the finding by the medical advisory, the Board found sufficient evidence to have the medical records forwarded to the Office of the Surgeon General to have his records submitted into the Integrated Disability Evaluation System (IDES) to be considered for a medical retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be forwarded to the Office of the Surgeon General to have his medical records evaluated by the Integrated Disability Evaluation System (IDES) to be considered for a medical retirement. 2. Prior to closing the case, the Board noted the administrative note below by the analyst of record and recommended that change also be completed to more accurately depict the military service of the applicant. 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): The Board determined that administrative error in the records of the individual should be corrected. Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by amending his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 3 February 2015 as to show in item 18 (Remarks) the statement “Continuous Honorable Service from 23 August 2005 to 7 September 2009. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. c. Chapter 14, of the version in effect at the time, establishes policy and prescribes procedures for separating members for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 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 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) established the Army Physical Disability Evaluation System (PDES) 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. a. Paragraph 1-1 states that If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of this regulation are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability and to provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Paragraph 3-1, states the mere presences of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating: To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40–501, chapter 3. Considering the overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. c. It further states that the effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments. All relevant evidence must be considered in evaluating the fitness of a Soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. When deciding the Soldier’s unfitness to perform duties the initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service, may compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring, may compromise the health or well-being of other Soldiers, or may prejudice the best interests of the Government if the individual were to remain in the military Service. 3. Army Regulation 40-501(Standards of Medical Fitness), provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier’s performance of their duties. a. Paragraph 8-24a(1) states that Soldiers being considered for administrative separations, including but not limited to: chapter 9, Alcohol or other Drug Abuse Rehabilitation Failure; chapter 13, Unsatisfactory Performance; chapter 5-13, Personality Disorder (PD); chapter 5-17, Other Mental Health Condition; and chapter 14-12, Patterns of Misconduct. Soldiers will be screened for both Post Traumatic Stress Disorder (PTSD) and mild Traumatic Brain Injury (mTBI) prior to their discharge. b. Paragraph 8-24a(2)(d) states he diagnosis must address post-traumatic stress disorder (PTSD) or other co-morbid mental illness, if present. c. Paragraph 8-24a(3), states that the 10 USC 1177 requires a medical examination in certain instances prior to administrative separation of Soldiers under conditions other than honorable. Separation authorities will ensure medical examinations are completed for any Soldier, officer or enlisted, pending administrative separation under conditions other than honorable who has deployed overseas in support of a contingency operation during the previous 24 months, and who is diagnosed with PTSD and/or traumatic brain injury (TBI), or who otherwise reasonably alleges the influence of such condition based on their service while deployed. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20170006165 7 1