ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20170012646 APPLICANT REQUESTS: * upgrade of his under honorable conditions (general) discharge * retirement due to physical disability * discharge with the highest rank achieved, sergeant (SGT)/E-5 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (ABCMR) 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 in the Warrior Transition Battalion (WTB) for a medical retirement due to injuries sustained while on active duty. While in the WTB, he was also diagnosed with severe depression, severe anxiety, and mood disorder as part of his disability rating. He was given at the time a 70 percent rating and he is now 100 percent. b. His noncommissioned officer (NCO) at the WTB was not understanding these issues as he was informed that all NCOs and officers were supposed to be understanding and patient with the Soldiers in the WTB with these types of issues. Due to this oversight, he was counseled and given an Article 15, reduced in rank, and given an under honorable conditions discharge for misconduct (serious offense), with no explanation of the offenses. This just further shows that there was no serious offense and that the NCO acted hastily and inappropriately. Therefore, he respectfully requests that the Board correct this error and injustice and approve the change to an honorable discharge for medical retirement with the highest rank achieved as SGT/E-5. 3. Following service in the Army National Guard, the applicant enlisted in the Regular Army on 25 May 2007 in the rank of specialist (SPC)/E-4. 4. The applicant's Enlisted Record Brief (ERB) shows he was reassigned to the WTB, Fort Bragg, NC on 16 December 2010. His ERB does not show he was promoted to the rank of SGT/E-5. 5. The applicant's records contain numerous DA Forms 4856 (Developmental Counseling Form) showing he was counseled on several occasions for acts of misconduct that include disrespect to a commissioned officer and to NCOs, missing formations, failure to follow instructions, missing appointments, insubordination, and failure to report. 6. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 18 July 2017 for: * making a false official statement * dereliction of duty * seven specifications of failing to go at the time prescribed to his appointed place of duty 7. The punishment consisted of reduction to the rank of private first class (PFC)/E-3 (suspended to be automatically remitted if not vacated before 29 September 2011). 8. A DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) shows that on 19 August 2011, the applicant failed to go at the time prescribed to his appointed place of duty. Based on this act of misconduct, the suspension of punishment of reduction to PFC/E-3 was vacated on 30 August 2011. 9. The applicant received NJP under the provisions of Article 15, UCMJ, on 18 November 2011 for: * being disrespectful to his superior NCO * two specifications of failing to go at the time prescribed to his appointed place of duty * false official statement 10. Part of the punishment consisted of reduction to the rank of private/E-2 (PV2) (suspended to be automatically remitted if not vacated before 18 March 2012). 11. On 2 December 2011, a Medical Evaluation Board (MEB) diagnosed the applicant with chronic pain syndrome (polyarthralgia), which was found medically disqualifying for further service. He was diagnosed with seven additional medical conditions that were not medically disqualifying. The MEB recommended the applicant's referral to a Physical Evaluation Board (PEB). 12. A DA Form 2627-2 shows that on 8 December 2011, the applicant unlawfully solicited gifts from the New York Firefighters, this action being prejudicial to good order and discipline in the Armed Forces and being of nature to bring discredit upon the Armed Forces. The DA Form 2627-2 also shows the applicant was disrespectful towards his superior commissioned officer. Based on these acts of misconduct, the suspension of punishment of reduction to PV2 was vacated on 9 December 2011. 13. On 22 December 2011, the applicant's immediate commander notified him of his intent to separate the applicant from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, with an other than honorable conditions characterization of service. The commander stated the reasons for the proposed separation action were the applicant's failure to be at his appointed place of duty on numerous occasions; numerous false official statements pertaining to his injuries and medical issues; disrespecting noncommissioned officers on numerous occasions; disorderly conduct in the company area; disobeying a written order by failing to support family members pertaining to their health and well-being; disrespecting a commissioned officer; and disorderly conduct by unlawfully soliciting gifts from a non-military organization being of a nature to bring discredit upon the Armed Forces. The applicant was also advised of his right to consult with legal counsel and to request a hearing before an administrative separation board. 14. On 3 January 2012, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct and of the rights available to him. He waived consideration of his case by an administrative separation board. 15. On 19 January 2012, the Commanding General, Headquarters, Fort Bragg, approved the separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the applicant received a general, under honorable conditions characterization of service. The Commanding General stated the following: I have reviewed the administrative separation action and Medical Evaluation Board results pertaining to [applicant's name and unit] and find that the Soldier's medical condition is not the direct or substantial cause of the conduct that led to the recommendation for administrative elimination. Other circumstances of the individual case do not warrant disability processing instead of further processing for administrative separation. 16. The applicant's DD Form 214 confirms he was discharged on 21 January 2012, in the rank of PV2, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense) with an under honorable conditions (general) characterization of service. 17. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and for a change of the reason for his separation on 2 November 2012. 18. On 22 January 2018, the Army Review Boards Agency senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant did not meet medical retention standards for chronic pain syndrome (polyarthralgia). The applicant was administratively separated for misconduct and commission of a serious offense, after undergoing MEB proceedings. 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. Based on the information available for review, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 19. The applicant was provided a copy of the advisory opinion on 29 January 2018 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple events of misconduct and the opinion found within the medical advisory, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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 general discharge if such is merited by the Soldier's overall record. 3. Army Regulation 635-200, paragraph 3-7a provides that 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. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical 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 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 general court-martial convening authority (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. ABCMR Record of Proceedings (cont) AR20170012646 7 1