ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 January 2020 DOCKET NUMBER: AR20170007225 APPLICANT REQUESTS: through counsel: * correction of his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 27 November 2012, to recalculate the time for an appeal * consideration of his entry into the Integrated Disability Evaluation System (IDES) at the time of his administrative discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Brief in Support of Appeal, Counsel, undated * All Army Activities (ALARACT) Message 159/2012, dated 13 June 2012 * Information Paper, dated 8 November 2013, subject: Impact of Misconduct on the Army Disability Evaluation System (DES) Process * IDES Record of Appointments, dated 31 March 2014 * two Email Messages, U.S. Army Medical Command, Darnall Army Medical Center, Fort Hood, TX, dated 31 March 2014 * DA Form 3349 (Physical Profile), dated 1 April 2014 * DA Form 3982 (Medical and Dental Appointment), dated 2 April 2014 REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. a. Paragraph 3-4 (Personal Exercise of Discretion) states a commander will personally exercise discretion in the nonjudicial punishment (NJP) process by: * evaluating the case to determine whether proceedings under Article 15 should be initiated * determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court- martial * determining the amount and nature of any punishment, if punishment is appropriate b. Paragraph 3-6 (Filing Determination) states a commander's decision whether to file a record of NJP in the performance folder of a Soldier's Official Military Personnel File (OMPF) is as important as the decision on whether to impose NJP itself. c. Paragraph 3-18(f)(1) states if the Soldier requests a decision period, the Soldier will be given a reasonable time to consult with counsel, including time off from duty if necessary, to decide whether or not to demand trial. The decision period will not begin until the Soldier has received actual notice and explanation of rights under Article 15, UCMJ, and has been provided a copy of the DA Form 2627 with items 1 and 2 completed. The Soldier will be advised that if he or she demands a trial, block 3a of the DA Form 2627 must be initialed and item 3 must be signed and dated within the decision period; otherwise, the commander will proceed under Article 15, UCMJ. The decision period should be determined after considering factors such as the complexity of the case and the availability of counsel. Normally, 48 hours is a reasonable decision period. If the Soldier does not request a delay, the commander may continue with the proceedings immediately. If the Soldier requests a delay, the Soldier may, but only for good reason, be allowed an additional period, to be determined by the imposing commander, to decide whether to demand trial. The Soldier will again be given a reasonable decision period in which to consult with counsel. In either case, item 10 of the DA Form 2627 will contain the following entry: "Paragraph 3-18(f)(1), Army Regulation 27-10, complied with." d. Paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) states the original DA Form 2627 will be filed in the Soldier's OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the OMPF will be made by the imposing commander at the time punishment is imposed. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The Army Military Human Resource Record (AMHRR) includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B represents currently active forms and documents required for filing in the AMHRR. For Soldiers in the rank of specialist or corporal and below (prior to punishment), the original DA Form 2627 will be filed locally in unit nonjudicial punishment or unit personnel files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority (GCMCA), whichever occurs first. For these Soldiers, the imposing commander should annotate "not applicable (N/A)" in item 4b of the DA Form 2627. For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder of the OMPF will be made by the imposing commander at the time punishment is imposed. The imposing commander’s filing decision will be indicated in item 4b of the DA Form 2627. 4. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) described the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals. b. Chapter 7 described the system for classifying individuals according to functional abilities. The functions have been considered under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4. An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness. A physical profile designator of "2" under any factors indicates some medical condition or physical defect that requires some minor functional or activity limitations. A profile containing one or more numerical designators of "3" describes one or more medical conditions or physical defects with significant functional or activity limitations and warrant processing through the Military Occupational Specialty Administrative Retention Review Program or DES process. A profile containing one or more numerical designators of "4" describes one or more medical conditions or physical defects with severe limitations of military duty performance and requires a DES board evaluation. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 4-3 (Enlisted Soldiers Subject to Administrative Separation) stated 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. b. Paragraph 4-3b stated the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. A case file may be referred to the physical evaluation board (PEB) if the GCMCA finds the following: * the disability is the cause, or substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 6. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 1-33 (Disposition through Medical Channels) stated when the medical treatment facility commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 (Separation for Misconduct) does not meet the medical fitness standards for retention, he/she will refer the Soldier to a medical evaluation board (MEB). The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB. b. Paragraph 1-33(1) stated if the MEB findings indicate that referral of the case to a PEB is warranted for disability processing, the medical treatment facility will furnish copies of the approved MEB proceedings to the Soldier's GCMCA. c. Paragraph 3-7 (Types of Administrative Discharges/Character of Service) stated a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. d. Paragraph 14-3 (Characterization of Service or Description of Separation) stated a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of chapter 14 (Separation for Misconduct). However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. e. Paragraph 14-12c (Commission of a Serious Offense) stated Soldiers are subject to action per this section for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. f. Paragraph 14-17g (Action by the Separation Authority) stated on receipt of a recommendation for separation for misconduct, the separation authority may direct that the case be processed through medical channels if the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the misconduct, and action under the UCMJ is not initiated. A copy of the signed decision by the GCMCA will be included with the records. 7. ALARACT Message 159/2012 clarifies enlisted administrative separation processing for Soldiers identified as not meeting medical retention standards. Ultimately, if the Soldier is found physically fit by the PEB, administrative separation may resume. If the Soldier is found physically unfit, the administrative separation action will be abated. FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160011888 on 15 December 2016. 2. The applicant defers to counsel. 3. Counsel states: a. The referenced decision wrongly denied the NJP appeal submitted by the applicant on 29 November 2012 as untimely, citing the date of the commander's punishment decision on 19 November 2012 as the starting date for the appeal rather than the date of 27 November 2012, the date applicant was notified of the punishment. b. The Board erred when it denied the applicant's request to have his case considered under the IDES and instead let stand the administrative separation he received. A message, dated June 2012, and an information paper, dated 8 November 2013, both clearly state the precedence the IDES process has over administrative discharge. The applicant was undergoing the IDES process at the time of his illegal administrative discharge and he should have been allowed to continue that process. 4. The applicant was serving in the Regular Army as a recruiter in the rank/grade of staff sergeant/E-6 at the time he became the subject of a Commander's Inquiry for unauthorized use of a government-owned vehicle (GOV). 5. Memorandum, Lewisville Recruiting Company, Lewisville, TX, dated 25 February 2011, subject: Commander's Inquiry for Unauthorized Use of GOV, states: a. The applicant wrecked his GOV on or about 0100 on 1 October 2010. He stated he made a mistake by using poor judgement concerning his decision to take his GOV home, violating policy since he did not have domicile-to-duty orders. b. The applicant has had an array of recent and past problems concerning his job, health, and family responsibility. He was taking three different medications for post- traumatic stress disorder (PTSD), anxiety issues, and depression, and has marital problems. c. The applicant was advised that failure to comply with Army regulation and brigade/battalion guidance will result in possible UCMJ action. 6. On 30 June 2011, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for violating a lawful general regulation by wrongfully using his GOV for unofficial purpose by taking it home without proper authorization between on or about 30 September 2010 and 1 October 2010. a. Having been afforded the opportunity to consult with counsel, he elected not to demand a trial by court-martial and he elected a closed hearing; elected a person to speak in his behalf; and to present matters in defense, extenuation, and/or mitigation in person. b. Having considered all matters presented, his brigade commander found the applicant guilty and directed filing the DA Form 2627 in the restricted folder of his AMHRR. c. His punishment consisted of reduction to the rank/grade of sergeant/E-5 suspended, to be automatically remitted if not vacated before 29 August 2011; forfeiture of $1,400.00 pay, to be automatically remitted if not vacated before 29 August 2011; and an oral reprimand. 7. A review of the applicant's AMHRR in the iPERMS (interactive Personnel Electronic Records Management System) shows the DA Form 2627 is filed in his restricted folder. 8. On 25 July 2012, the Commanding General, Headquarters, U.S. Army Recruiting Command, reprimanded him in writing for by engaging in social activity of an unofficial personal relationship and having unofficial personal contact with a future recruit by sending her a sexually explicit picture of his genitalia and requesting that they engage in sex. A review of his AMHRR shows the general officer memorandum of reprimand (GOMOR) is filed in the performance folder. 9. A review of the applicant's AMHRR fails to show the DA Form 2627, dated 27 November 2012, referenced by the applicant's counsel. 10. The applicant's AMHRR does not contain the applicant's discharge packet specifying the reason for separation. 11. The applicant provided an email from the U.S. Army G-1 Personnel Policy Integrator to a Darnall Army Medical Center representative, dated 20 February 2014, stating: "The HQDA [Headquarters, Department of the Army] policy is clearly stated in paragraph 4A. If this Soldier is in the DES, the separation should not be executed until it is determined whether she meets medical fitness standards and if the separation orders have been published, they should be rescinded until final medical determination is made." 12. U.S. Army Installation Management Command, Fort Knox, KY, Orders 076-0163, dated 17 March 2014, discharged the applicant effective 31 March 2014. The authority is shown as Army Regulation 635-200. 13. The Standard Form 600 (Chronological Record of Medical Care), dated 19 March 2014, shows the Soldier Medical Readiness Center Physical Examination Clinic provider entered the following notes: * the clinic telephoned the applicant regarding the MEB referral denial and his expired temporary physical profile * the applicant has been through the RESET program in 2010 for chronic PTSD and was given the diagnosis of chronic PTSD at that time, and he has been followed by his civilian provider after this as he is in the Dallas area * the psychiatry reference that the MEB clinic used is the mental health evaluation that was done for the Army Regulation 635-200, chapter 14, process * she will resubmit the referral for the MEB based on this new information * the applicant has been in contact with the MEB legal department as well 14. The applicant provided an email from his MEB Counsel to the IDES Administrative Branch Supervisor, dated 28 March 2014 at 4:03 p.m., stating: * she was asked to look into the applicant's case * the applicant was assigned to the Recruiting Command and has been informed that he is supposed to be in the IDES process as of Monday, 31 March 2014 * the issue is that he also has discharge orders for 31 March 2014 due to an administrative separation action * she asked if the MEB had been initiated 15. The applicant provided an email from the IDES Administrative Branch Supervisor to his MEB Counsel, dated 28 March 2014 at 4:20 p.m., stating: "We will revisit tomorrow when F____ is here. Nothing yet from [Fort] Knox. He was just here and has not completed out-processing." 16. The applicant provided an email from the IDES Administrative Branch Supervisor to his MEB Counsel, dated 31 March 2014 at 11:18 a.m., stating: "We are moving forward with initiation today. We have been in contact with his unit and are awaiting revocation of his orders." 17. The applicant provided an email from his MEB Counsel to U.S. Army Recruiting Command representatives, dated 31 March 2014 at 12:23 p.m., stating the applicant's discharge orders are for today, 31 March 2014, due to administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12. She does not have all the details. The applicant is also slated to be entered into the IDES process for MEB/PEB processing and potential discharge under the medical system. The ALARACT message, email from the ALARACT proponent, and the information paper outline how Soldiers entered into the IDES process at any time while still in the Army (even if they have an approved separation) must be processed through medical channels, at least to the point where the GCMCA determines whether the administrative separation or IDES takes precedence. The lead PEBLO at Fort Hood stated the applicant is being entered into the IDES today and the IDES Office is working with the applicant's unit to get his separation orders rescinded. 18. He was discharged from the Regular Army on 31 March 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * his character of service as "Under Honorable Conditions (General)" * the separation authority as Army Regulation 635-200, paragraph 14-12c * the narrative reason for separation as "Misconduct, (Serious Offense)" 19. The DA Form 3349 (Physical Profile) from the Darnall Army Medical Center MEB Clinic, dated 1 April 2014, shows: * his medical condition as chronic post-traumatic stress disorder * he was assigned permanent physical profile ratings of – * 2 under physical capacity factor P (physical capacity or stamina) * 2 under physical capacity factor L (lower extremities) * 3 under physical capacity factor S (psychiatric) * he was rated "No" under the functional activities – * carry and fire individual assigned weapon * evade direct and indirect fire * live in an austere environment without worsening the medical condition * he did not meet retention standards in accordance with Army Regulation 40-501, chapter 3, and required an MEB 20. The applicant provided an IDES appointment records showing the following mandatory appointments: * 2 April 2014 – * the IDES brief was scheduled * the initial meet and greet with his PEBLO was scheduled directly after the IDES brief * the IDES case would be transferred to the Department of Veterans Affairs (VA) * the Military Services Coordinator interview would occur as early as 2 April 2014 and no later than 18 April 2014 * 8 April 2014 – the narrative summary appointment would occur between 8 April 2014 and 2 June 2014 * 21 April 2014 – the VA Compensation and Pension examination appointments would occur between 21 April 2014 and 2 June 2014 * 28 April 2014 – the supplement brief would occur at 9 a.m. * 7 June 2014 – the PEBLO counseling appointment will occur between 7 June 2014 and 9 June 2014 * 12 June 2014 – the projected date to the PED between and 14 June 2014 21. He provided a DA Form 3982, dated 2 April 2014, showing he was scheduled to attend a mandatory MEB briefing from 9:30 a.m. until 11:30 a.m. 22. On 4 May 2016, the Army Discharge Review Board voted to grant the applicant relief in the form of an upgrade of the characterization of service to honorable. The Board determined: * the discharge under honorable conditions (general) was improper based on the applicant's length and quality of his service, to include his combat service and circumstances surrounding the discharge * per the board's medical officer and based on the information available for review at the time, the basis for separation is void of facts * it cannot be determined if there was a nexus between the specific charge(s) that led to the applicant's separation and his diagnosis of PTSD * in spite of screening negative for PTSD at separation and his mental status evaluation on 15 July 2013, the applicant had a history of chronic PTSD * records show the applicant was charged with wrongful use of government vehicle for an unofficial purpose, having an unofficial personal relationship/unofficial contact with a future Soldier, and sending inappropriate text messages and photographs * these offenses are not mitigated by PTSD 23. On 16 June 2016, the applicant was issued a new DD Form 214 showing his character of service as "Honorable" and narrative reason for separation as "Secretarial Authority." 24. The medical advisory opinion, dated 30 September 2016, states: * the applicant met medical retention standards in accordance with Army Regulation 40-501, chapter 3, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service based on the available documentation * the applicant's medical conditions were duly considered during medical separation processing based on the available documentation * a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case 25. On 30 October 2016, the applicant's counsel's responded to the medical advisory opinion wherein he stated: a. The central issue in the case is the applicant was entered into and had begun processing under the IDES and, as such, that process, according to Army regulation, should have been allowed to process through to completion. However, it was not allowed to continue and he was administratively separated. b. The advisory opinion does not address the issue of why and how the MEB process was unlawfully short-circuited by the commanding general exercising separation authority over the applicant. 26. On 15 December 2016, the ABCMR denied the applicant's requests for removal of a GOMOR from his AMHRR, set aside of NJP, and return to active duty for processing through the IDES. The Board determined: * the contested DA Form 2627 is not filed in the applicant's AMHRR * there is no evidence of "clear injustice" with respect to the administration and imposition of NJP * the evidence of record shows the applicant underwent a pre-separation medical examination in July 2013, which included a mental status examination * the applicant was deemed fit for full duty, including deployment, and he met psychiatric retention standards * the applicant did not have any unfitting medical condition(s) * there was no basis for referral of the applicant to an MEB or to continue any such processing through the IDES 27. On 8 January 2020, the U.S. Army Human Resources Command Patient Administration Officer determined there was insufficient evidence showing the applicant's being entered into the IDES process. The only note in the AHLTA was from 19 March 2014 stating the provider would resubmit the referral, but that doesn't mean the applicant's permanent "3" physical profile rating was approved prior to 1 April 2014. No physical profile was located in his medical records indicating he was in the DES prior to 1 April 2014. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. The applicant should be referred to the Disability Evaluation System (DES) for evaluation for disability discharge. The Army Physical Disability Agency (PDA) administers this process. If the applicant is found to be eligible for a disability separation, the PDA will take the necessary actions. 2. Concerning appeal of the Article 15 (DA Form 2627) issued by his commander on 4 October 2012, the DA Form 2627 shows that the Article 15 proceedings which was held on 19 November 2012 which is the date shown on the form under the record of the proceedings. In the record of proceedings, it states that the applicant was advised of his right to appeal to the next superior authority within five (5) calendar days which is within five calendar days from the date on which the applicant was so advised – 19 November 2012. Five calendar days was 24 November 2012. Based on dates the applicant signed the DA Form 2627 on 27 November 2012, signing both for block 3 and block 5, he signed these on this date after he was in the open hearing on 19 November 2012 where he was told he had five days to appeal from the date he was so advised on 19 November 2012. The Board finds no error or injustice in the rejection of the appeal submitted by the applicant on 29 November 2012 as untimely. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XX :XXX 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his medical records to the Disability Evaluation System (DES) for evaluation for disability discharge. If the applicant is found to be eligible for a disability separation, the Army Physical Disability Agency (PDA) will take the necessary actions. 2. The Board further determined 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 to recalculate the time for an appeal on the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 27 November 2012 by the applicant which was dated by the commander on 19 November 2012. 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) AR20170007225 12 1