ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180009438 APPLICANT REQUESTS: a. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims. The Court directs the ABCMR to provide the applicant the opportunity to present, in writing, any documents, arguments, or opinions; in addition, this affords the applicant any relief to which the ABCMR determines he is entitled. The court further directs the ABCMR to issue a decision explaining, in detail, the rationale supporting its final decision. b. Through counsel, the applicant requests: * correction of his military records to show he was not discharged on 31 October 2016, but continued to serve on active duty by, in effect, voiding his discharge * due consideration be given to his military retirement packet, in a manner consistent with the 2015 pre-trial agreement * proper medical evaluation for post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and anxiety disorder * back pay and allowances * any other relief that is appropriate * to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit 1 – Enlisted Record Brief * Exhibit 2 – LCSW (Licensed Clinical Social Worker) Kl Letter * Exhibit 3 – Captain (CPT) Wi Fa Memorandum * Exhibit 4 – Record of Trial (Excerpt) * Exhibit 5 – Pre-Trial Agreement * Exhibit 6 – CPT E M. Hu Support Memorandum * Exhibit 7 – An Eb Declaration * Exhibit 8 – Promulgating Order * Exhibit 9 – Fort Sill Staff Action Memorandum * Exhibit 10 – Separation Board Transcript (Excerpt) * Exhibit 11 – Finding and Recommendations Sheet * Exhibit 12 – Legal Review * Exhibit 13 – Marital Property Settlement Agreement * Exhibit 14 – Mr. Ha Letter * Exhibit 15 – Medical Records - Traumatic Brain Injury (TBI) * Exhibit 16 – Medical Records - PTSD * Exhibit 17 – Mr. Hu Letter * Exhibit 18 – Major (MAJ) Wa Letter * Exhibit 19 – MAJ Ke Letter FACTS: 1. Counsel states: a. The applicant requests relief because his pre-trial agreement was breached and he was separated in violation of Army and Department of Defense (DOD) regulations. (1) In 2015, the applicant entered into a pre-trial agreement with the general court-martial convening authority (GCMCA) at the installation to which he was assigned. The applicant waived his Constitutional rights and agreed to plead guilty to one violation of the Uniform Code of Military Justice (UCMJ) in exchange for the GCMCA's support of his retirement application. The applicant had completed 29 years of active duty service, and had favorable recommendations from both the victim and the trial counsel (CPT E M. Hu ); the applicant fulfilled his part of the agreement. (2) In 2016, a second GCMCA, at a different installation to which the applicant had been reassigned due to his court-martial conviction, convened an administrative separation board; the board would not let the applicant call the previous trial counsel (CPT E M. Hu ) as a witness. The board recommended the applicant's separation with a general discharge under honorable conditions. (3) The second GCMCA's actions were arbitrary and capricious in that they breached the pre-trial agreement and denied the applicant his Constitutional rights. Additionally, his actions denied the applicant's former spouse and children of their part of the applicant's military retired pay and benefits (as had been apportioned in a marital property settlement agreement, and as provided by the U.S. Former Spouses' Protection Act). (4) The applicant's separation violated DOD Instruction (DODI) 1332.18 (Disability Evaluation System (DES)) because, prior to his separation, military medical authority failed to address his PTSD, MDD, and anxiety disorder (among other medical conditions). Treating a combat Veteran this way is inconsistent with Army laws, procedures, customs and traditions; it amounts to fundamental unfairness and a travesty of justice. b. Counsel summarizes key facts: * 1987 – enlisted in the Army * 1 June 2010 – promoted to sergeant major * April 2014 – diagnosed with PTSD, MDD, and anxiety disorder; despite diagnoses, applicant not treated for these medical conditions * 5 August 2015 – per pre-trial agreement, the GCMCA limited applicant's confinement and rank reduction; applicant was reduced to specialist and confined for 6 months; the promulgating order explicitly supported the applicant's retirement and recommended its approval * 5 August 2015 to 2 January 2016 – applicant confined at Fort Leavenworth, KS, and assigned for administrative purposes to a U.S. Army Personnel Control Facility (PCF) at the second installation * 27 April 2016 – applicant submitted his retirement request (at the second installation); he asked for a 1 August 2016 retirement date; the second installation's U.S. Army Garrison (USAG) chain of command favorably considered his request * 5 May 2015 – the second GCMCA ignored the pre-trial agreement by failing to support the retirement request and convened an administrative separation board * during the hearing, the administrative separation board violated the applicant's due-process rights by denying his request to call the trial counsel (CPT E M. Hu ) in order to explain the pre-trial agreement * the legal review of the board proceedings ignored the fact the board had violated the applicant's rights under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), and that the first GCMCA had agreed to support his retirement * the administrative separation board recommended elimination from the Army with a general discharge under honorable conditions; there was no medical referral nor any direction for treatment of his PTSD, MDD, and anxiety disorder; on 31 October 2016, he was administratively discharged * a former Senior Defense Counsel asserted the pre-trial agreement was binding on the second GCMCA and noted other court-martialed Soldiers were allowed to submit retirement applications c. Counsel details the applicant’s military history: he highlights the applicant's numerous awards and decorations; his foreign service (including service during Operations Desert Shield/Desert Storm); and his noncommissioned officer evaluation reports (NCOER). Counsel further addresses the applicant's personal life, briefly describing his marriage and his divorce. d. Counsel states, on 27 January 2017, the Department of Veterans Affairs (VA) established a service-connection for the applicant's PTSD and TBI; VA awarded the applicant a 70 percent disability rating. e. Counsel quotes the Fifth Amendment to U.S. Constitution, and cites case law, the Rules for Courts-Martial from the Manual for Courts-Martial; and Army/DOD regulations; he essentially argues that, in accordance with the foregoing references, the applicant was denied his rights. In addition to earlier arguments, he contends: * the board recorder provided the board incorrect information (i.e. that separation could be suspended for not more than 6 months); the regulation stated highly deserving Soldiers could be given a probationary period, and separation could be suspended for not more than 12 months * the applicant's medical conditions (to include PTSD, MDD, anxiety disorder, chronic neck and back pain) required referral into the Army's DES 2. Counsel provides: a. Letter, dated 4 May 2016, from a licensed clinical social worker (LCSW), which states the applicant had been seen by the writer's behavioral health office since 8 January 2016, and previously at two other identified locations. Since April 2014, the applicant was diagnosed with MDD, anxiety disorder, and PTSD. He was positively engaged in treatment and was complying with medication requirements; he would benefit from continued care. b. Undated memorandum from the applicant's primary care provider, CPT Wi Fa , that indicated the applicant had been under his care since January 2016; he had several chronic conditions requiring long-term treatment: chronic neck and back pain; chronic muscle spasms; irritable bowel syndrome; hypertension; and eczema and psoriasis. c. Extract from the applicant's VA Rating Decision, dated 27 January 2017, which shows the VA found a service-connection for PTSD with TBI and granted a 70 percent disability rating. d. An excerpt from the applicant's general court-martial record of trial, wherein the military judge addressed the applicant rights, and the pre-trial agreement was reviewed. e. A copy of the applicant's pre-trial agreement showing the applicant agreed to plead guilty to one charge and specification; the convening authority agreed to disapprove any confinement in excess of 6 months; disapprove any adjudged punitive discharge; and agreed to support the applicant's retirement packet. f. Memorandum, dated 10 June 2015, Subject: My Support for Approving Part I and Part II of the Offer to Plead Guilty in the case of US v. [applicant], jointly signed by CPT E M. Hu (trial counsel) and applicant's former spouse, An Eb . It essentially acknowledges An Eb and CPT E M. Hu discussed the pre-trial agreement. As a result, CPT E M. Hu indicated the applicant would have to register as a sex offender (a primary concern for An Eb ). Also, while CPT E M. Hu could not assure the amount of confinement the applicant would receive, he believed it would be for a term of months rather than years (An Eb supported this). While An Eb felt it was important the applicant be held accountable, it was also essential the Army allow him to retire so she and her children could receive retirement benefits. To deny this to the family would be punishing them for the applicant's misconduct. g. Declaration, dated 2 November 2018, by the applicant's former spouse stating, per their divorce agreement, she was entitled to 50 percent of his military retired pay; in addition, the applicant's retirement would have helped her and their children with healthcare coverage. Not approving the applicant's retirement negatively affects both her and her children. h. Letter, dated 7 November 2018, from the applicant's defense counsel during his administrative separation board hearing, which states he attempted to call the trial counsel from the applicant's general court-martial, but the administrative separation board denied his request. He describes the second GCMCA's decision to ignore the pre-trial agreement as being fundamentally unfair; granting the applicant's request for retirement would restore integrity and fairness to what was otherwise an unjust proceeding. i. Letter from a Judge Advocate General officer who was formerly assigned as a trial defense counsel at the second GCMCA's installation. She notes several clients assigned to the PCF did not receive punitive discharges and some had pre-trial agreements addressing administrative separation. She asserted pre-trial agreements are binding on the convening authority, even if he/she is not the convening authority who signed the original agreement. Under similar, though somewhat varied circumstances, other clients were allowed to submit for retirement and were not subject to administrative separation. 3. The applicant's service records shows: a. The applicant enlisted in the Regular Army on 30 June 1987. He was deployed to Iraq from 25 August 1990 to 10 April 1991. He married An Eb in September 1993. He reenlisted for an indefinite term on 25 January 2002. On 1 June 2010, he was promoted to sergeant major. The applicant and An Eb divorced in July 2011. On 13 December 2012, he was assigned to Peterson Air Force Base as a command sergeant major (CSM). b. On or about 7 June 2013, the applicant received an NCOER for the position of CSM, which addressed the rating period 8 December 2012 through 7 June 2013. The report was very favorable and indicated he passed his Army Physical Fitness Test (APFT) in May 2013. An associated comment stated he "always set the example for physical training; scored 249 (out of a possible 300) on last APFT." c. On 2 December 2013, as a result of an investigation conducted under AR 15-6 (Procedures for Investigating Officers and Boards of Officers), a lieutenant general issued the applicant a general officer memorandum of reprimand (GOMOR). The GOMOR cited the applicant for collaborating with a subordinate first sergeant (1SG) to fabricate a story and concealed critical facts about a Soldier's qualifications to participate in a competition. In addition, the GOMOR stated the applicant fostered an environment that led to the creation and submission of falsified packets; he did this by directing 1SGs to have certain Soldiers compete, while knowing those Soldiers could not complete the required events. (1) On 16 December 2013, the applicant submitted his response; he essentially denied fabricating, or collaborating to fabricate, stories about Soldiers. He did not know the Soldiers in question could not complete the required events; he never implied his senior NCOs should submit falsified packets. He asserted, bottom line, he was the CSM and this occurred on his watch; as such, he accepted responsibility for training and developing his subordinate NCOs. He promised he would never allow his subordinates to be put in this same situation again. (2) The applicant's chain of command recommended placement of the GOMOR in his official military personnel file (OMPF). Following consideration of the applicant's response and all available evidence, the imposing officer directed permanent filing in the applicant's OMPF. d. On or about 22 January 2014, the applicant received a relief for cause NCOER covering the rating period 8 June 2013 through 22 January 2014. An attached memorandum, dated 21 January 2014, stated the applicant's commanding general's basis for relief were the same reasons previously outlined in the GOMOR. This report also reflected the applicant passed his APFT in May 2013, and included a comment stating he demonstrated mental toughness. The applicant had led the battalion to the top of Pike's Peak, walking 13 miles and climbing more than 7,000 feet to an elevation of 14,110 feet. e. In or around April 2014, special agents from the U.S. Army Criminal Investigation Command (CID) questioned the applicant regarding allegations that he had molested his daughter (who was under 16 years of age at the time). f. On or about 29 January 2015, the applicant received a change of rater NCOER for the rating period 22 January 2014 through 29 January 2015; his duty title was sergeant major. The report was unfavorable, and noted the CID's investigation into sexual assault. Senior rater comments cited an approval of the applicant's involuntary separation under chapter 13 (Separation for Unsatisfactory Performance), AR 635-200. The report showed he had a profile as of 28 February 2014 and the rater commented, "profile did not hinder duty performance." g. At some point prior to 18 May 2015, and based on the results of CID's investigation, the applicant's commander preferred court-martial charges against him. On 18 May 2015, the applicant submitted his offer for a pre-trial agreement. On or about 18 June 2015, the applicant's GCMCA agreed to the pre-trial agreement, wherein the applicant affirmed he would plead guilty to engaging in sexual contact with a child under 16 years of age. In exchange, the GCMCA would disapprove both confinement in excess of 6 months and a punitive discharge; additionally, the GCMCA agreed to support the applicant's retirement packet (the agreement did not address rank reduction). h. On 5 August 2015, a general court-martial convicted the applicant of engaging in sexual contact, from August 2008 until January 2010, with a child under 16 years of age. The court sentenced him to confinement for 30 months and reduction to specialist (SPC)/E-4; on 5 August 2015, he was confined at Fort Leavenworth. i. On 23 October 2015, the GCMCA approved only so much of the sentence as allowed for confinement for 6 months and reduction to SPC/E-4; the GCMCA ordered the sentence's execution. In addition, effective 18 August 2015, the GCMCA waived the automatic forfeiture of pay and allowances and directed the payment of all funds to the applicant's former spouse and children. The order further stated, "[applicant's] request to retire, effective 1 April 2016, is supported and recommended for approval." j. On 3 January 2016, the applicant was released from confinement. k. On 26 January 2016, the applicant's PCF commander notified him in writing of his intent to separate the applicant under the provisions of chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), AR 635-200. The commander based this action on the following: * between August 2008 and January 2010, the applicant engaged in sexual contact with a child under 16 years of age * on 1 October 2015, the applicant committed an assault on a fellow inmate at Fort Leavenworth l. On 4 February 2016, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, as well as the rights available to him and the effects of waiving those rights. He requested to have an administrative separation board hear his case, and to personally appear with counsel before the board. He elected not to submit a statement in his own behalf. He further stated he believed he suffered from PTSD or traumatic brain injury due to a deployment overseas during the previous 24 months. m. On 17 March 2016, the GCMCA for the PCF commander directed the applicant's case be referred to an administrative separation board to determine if the applicant should be involuntarily separated and, if recommended for separation, make a recommendation as to character of service. n. On 5 May 2016, an administrative separation board convened, with the applicant and his counsel present, to determine if the applicant should be retained or separated under the provisions of paragraph 14-12c, chapter 14, AR 635-200. After hearing testimony and reviewing evidence, the administrative separation board found the applicant had committed the offense for which a general court-martial had convicted him. The board also determined the applicant assaulted a fellow inmate while confined at Fort Leavenworth. The board recommended separation with a general discharge under honorable conditions. o. On or about 10 May 2016, the USAG commander agreed to sign a DA Form 4187 (Personnel Action), which reflected the applicant's request for voluntary retirement; included as well was a DA Form 31 (Request and Authority for Leave) for the applicant's placement on transition leave. p. On 17 May 2016, the supporting Staff Judge Advocate's Office affirmed the legal sufficiency of the administrative separation board findings and recommendations. q. On 3 June 2016, the GCMCA forwarded the applicant's case to Headquarters, Department of the Army (HQDA) with a recommendation for approval of the applicant's general discharge under honorable conditions. r. On 12 October 2016, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA, M&RA) directed the applicant's general discharge under honorable conditions per AR 635-200, paragraph 14-12c. s. On 31 October 2016, he was discharged accordingly. His DD Form 214 shows he completed 28 years, 11 months, and 2 days of net active creditable service, with lost time from 5 August 2015 to 2 January 2016. (1) He was awarded or authorized: * Bronze Star Medal * Meritorious Service Medal (6th Award) * Army Commendation Medal (7th Award) * Army Achievement Medal (11th Award) * Army Good Conduct Medal (7th Award) * U.S. Air Force Good Conduct Medal * National Defense Service Medal with one bronze service star * Southwest Asia Service Medal with one bronze service star * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * NCO Professional Development Ribbon with Numeral 4 * Army Service Ribbon * Overseas Service Ribbon (4th Award) * Kuwait Liberation Medal – Saudi Arabia * Kuwait Liberation Medal – Government of Kuwait * Drill Sergeant Identification Badge * Driver and Mechanic Badge with Mechanic Component Bar * Expert Marksmanship Qualification Badge with Pistol Bar * Expert Marksmanship Qualification Badge with Rifle Bar (2) He had continuous honorable service from 30 June 1987 to 24 January 2002. t. On 20 March 2019, an Army Review Boards Agency (ARBA) psychologist completed a medical advisory. (1) The medical records showed an in-service behavioral health diagnosis for adjustment disorder (first reflected in April 2014), an unspecified anxiety disorder (starting December 2015), and PTSD (first identified in January 2016). (2) A post-deployment health assessment, dated 26 July 2010, indicated the applicant had completed a neurological disorder screening examination to assess traumatic brain injury. The applicant denied any concussion symptoms, head injuries, and neurological difficulties. The examination found his cognitions and other higher cerebral functions were intact. A subsequent concussion care clinic evaluation, dated 14 June 2012, also showed the applicant denied having had a head injury from an explosion, projectile, a vehicular incident, or fall. (3) On 29 April 2014, the applicant self-referred himself to behavioral health; his commander accompanied him. This self-referral was in response to the U.S. Army Criminal Investigation Command (CID) confronting him that morning and interviewing him about allegations of molesting his daughter, now 17 years of age. The applicant acknowledged fondling his daughter when she was 12 years old. The records noted the applicant's spouse became aware of his actions and filed for divorce. At the time of the evaluation, medical authority determined the applicant met medical retention standards and psychiatrically cleared him. (4) A medical record entry, dated 6 May 2014, indicated the applicant continued to function as the CSM; the applicant reported he "came clean" with CID and began to accept some of the predictable consequences of his actions. At the time of this evaluation, the applicant met medical retention standards and behavioral health cleared him psychiatrically. (5) A 30 September 2014 periodic health assessment reflected the applicant's endorsement of chronic neck pain (being treated with pain management) and sleep disturbances (treated with Ambien). At the time of this assessment, his depression screen was negative. (6) Between October 2014 and August 2015, the applicant's records addressed relationship concerns and stressors associated with retirement, legal investigations, court-martial proceedings, and registering as a sex offender. In January 2015, the applicant asked about PTSD because a girlfriend had told him he had a tendency to be irritable, moody, socially withdrawn, and sad when he thought about Soldiers lost during deployments. During further discussions, the applicant affirmed symptoms of intrusive ideation and hyper-activity following deployment; however, with time, these symptoms resolved. He denied difficulty with crowds and reported no problems with numbing, flashbacks, or hyper-arousal. The medical provider concluded the applicant did not meet the criteria for PTSD and had a natural course of resolution of post-traumatic symptoms. (7) On 8 January 2016, the applicant reported that, while at Fort Leavenworth, he started treatment for PTSD and was on behavioral health medications. At this evaluation, the applicant indicated his PTSD symptoms had been around a long time and had a childhood history of sexual abuse (another child sexually assaulted him and he witnessed his sister being molested). Respectively on 19 January and 5 February 2016, the applicant's primary care provider diagnosed him with PTSD. (8) The ARBA psychologist referenced the two letters, submitted by counsel, respectively from an LCSW and the applicant's primary care provider. (9) Based on the foregoing, the ARBA psychologist determined: * applicant's records showed a diagnosis of PTSD, based on psychological evaluations dated 19 January and 5 February 2016; however, the applicant's condition did not fail medical retention standards * it was unknown if PTSD, depression, or anxiety symptoms existed when the applicant committed his misconduct, but those conditions did not reasonably mitigate his sexual assault of a minor * there was no evidence of a medical disability or condition that would support a change in the character or reason for discharge; the applicant did not have mitigating medical or behavioral conditions for the misconduct that led to his separation u. On 22 March 2019, ARBA provided the applicant and his counsel a copy of the advisory opinion for review, and the opportunity to submit a statement or additional evidence on his own behalf. Counsel sent the following in response: (1) The advisory incorrectly stated the pre-trial agreement limited rank reduction to SPC/E-4; no such limitations were set. Rather, the GCMCA agreed to support the applicant's retirement packet. (2) Counsel notes, in addition to breaching the pre-trial agreement, the second GCMCA violated the applicant's Constitutional rights. An interim version of AR 27-10 (Military Justice), dated 1 January 2019, attempts to remedy such a violation by mandating the compliance of the gaining unit's convening authority with the terms and conditions set by a former unit's GCMCA. (3) The medical advisory ignores numerous medical documents that confirm the applicant experienced significant back pain in January 2014, due to an accident; he was placed on a physical profile and could not carry a weapon or lift anything over 10 pounds. Because he could not perform his duties, he should have been referred for proper evaluation, per AR 40-501 (Standards of Medical Fitness). In addition, the advisory does not address evidence and medical records contrary to its opinion. (4) CPT Wi Fa , the applicant's primary care physician, gave details as to the applicant's PTSD, chronic back pain, chronic muscle spasms, irritable bowel syndrome, and hypertension. Although DOD policy states a Soldier is presumed fit, that presumption is overcome when an illness or injury occurs that prevents the Soldier from performing further duties; further, this applies if there is a serious deterioration of a previously diagnosed condition or the condition is chronic. Based on this, the applicant should have been referred for proper evaluation. (5) The advisory inaccurately indicates that applicant requested a remand order; in fact, it was a joint motion filed by the applicant and the U.S. government. 4. Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. Paragraph 14-12c (3), AR 635-200, requires commanders to process for separation all Soldiers convicted of a sexual offense (as listed in paragraph 24-2 (Registration of Military Sexual Offenders – Covered Offenses), AR 27-10). Processing for separation means the commander initiates the separation action, and moves it, with recommendations, through the chain of command to the separation authority for final determination. 6. The version of AR 27-10 (Military Justice) in effect when the applicant was convicted did not require the second GCMCA to abide by the previous GCMCA's pre-trial agreement. The newest version, effective 1 January 2019, does include this stipulation and specifically notes the new rule does not apply to cases referred to trial before 1 January 2019. The applicant's pre-trial agreement did not require a separation authority to approve his retirement request; the pre-trial agreement only stipulated the first GCMCA would recommend approval. 7. AR 635-200 states an administrative separation board's recorder will inform the respondent that, upon request, the board will try to arrange for the presence of any available witness. If a respondent disagrees with a board president's decision not to bring a witness, he/she can apply to board's convening authority and ask to have the decision overturned. DODI 1332.14 provides further guidance, stating, if the expenditure of funds is necessary to bring a witness, the convening authority will authorize the expense only after the board's president has considered a number of factors, to include: * if available written or recorded testimony will not adequately accomplish the same objective * a determination the testimony is not cumulative * whether live testimony is substantially and materially needed for proper case disposition 8. Chapter 12 (Retirement for Length of Service), AR 635-200, states: a. While Soldiers may be eligible to voluntarily request retirement after serving 20 years, they are not entitled to their requests approved. b. The Commander, HRC is identified as the approval authority for voluntary retirement requests when submitted by active duty Soldiers with less than 30 years of active Federal service; the ASA, M&RA represents the Secretary of the Army in all personnel matters and has oversight of the Commander, HRC. c. The role available of the GCMCA, with regard to the applicant's separation/retirement, was to submit a recommendation; the ASA, M&RA made the final determination as the separation authority. 9. Per AR 40-501, Soldiers may be referred to an MEB when they fail medical retention standards, as affirmed by the issuance of a permanent level 3 (significant limitations) or 4 (drastic limitations) physical profile, and/or when Soldiers reach their MRDP. (MRDP refers to that point where the Soldier's medical progress appears to have stabilized, the course of recovery is relatively predictable, and the Soldier is most likely unable to perform duties required of his MOS and grade). 10. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated: a. The mere presences of an impairment did not, of itself, justify a finding of unfitness because of physical disability. (1) In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably could be expected to perform because of their office, grade, rank, or rating. (2) While the applicant's last NCOER showed he had a profile, his last two NCOERs, addressing rating periods from December 2012 through January 2015, did not indicate physical hindrances to his duty performance; the report included the comment, "profile did not hinder duty performance." b. Soldiers charged with a UCMJ offense that included a punitive discharge as a punishment, or were pending a separation action that could result in an under other than honorable conditions discharge, were not to be referred into the DES. 11. The applicant's former spouse states, per their divorce agreement, she was entitled to 50 percent of his military retired pay; in addition, the applicant's retirement would have helped her and their children with healthcare coverage. To deny this to the family would be punishing them for the applicant's misconduct. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 12. Current Army policy provides, if a Soldier convicted at a court-martial was transferred to a PCF (in essence, a military confinement facility) and there was a plea agreement in the court-martial that resulted in post-trial confinement, the convening authority of the gaining unit will, on behalf of the convening authority who entered into the plea agreement, comply with all terms and conditions in the plea agreement. This current Army policy may not apply to the applicant’s case because: a) the policy was not in effect at the relevant time period, and b) the “gaining unit” in the applicant’s case was not a confinement facility/PCF. However, the gist of the current policy is that the government is obligated to comply with all terms and conditions of a plea agreement irrespective of whether a convicted Soldier happens to fall under the jurisdiction of multiple or successive GCMCAs. In this case, one could argue that the government failed to fulfill the entirety of its obligations under the agreement because only one, and not both, of the GCMCAs complied with the plea agreement by recommending approval of the applicant’s retirement request. The Board should determine whether equitable considerations suggest that the government should now more fully comply with the terms of the plea agreement by: a) having the current Fort Sill, OK, GCMCA make a retirement approval recommendation to the secretarial authority, and b) having the secretarial authority again take action, this time with both GCMCAs recommending approval of the applicant’s retirement request. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board considered his overall record of service, his medical conditions, the applicant’s divorce agreement, the serious misconduct considered by the GCMCA, the plea agreement for retirement and the subsequent decision of a second GCMCA to discharge without retirement. The Board considered the long-term negative financial impact on his family as a result of his discharge, the government’s obligation in accordance with the pleas deal and the reversal of that commitment by a subsequent GCMCA. 2. The Board carefully considered the applicant’s assertion that error occurred because he was not referred to an MEB or PEB prior to his discharge. The Board thoroughly reviewed the 20 March 2019 advisory opinion rendered by the ARBA clinical psychologist. The opinion noted that in 2010, the applicant denied experiencing neurological difficulties and that he denied being dazed or confused and denied other cognitive issues; in 2012 he likewise denied having a head injury from a traumatic event; that in 2014 he continued to function well in the demanding position of Command Sergeant Major; that also in 2014 his depression screen was “negative” and that his medical provider concluded the applicant did not meet criteria for PTSD and had “a natural course of resolution of post-traumatic stress symptoms.” The Board accepts at face value applicant’s assertion that he himself was the victim of sexual assault, but notes these complaints did not surface until the time of his court-martial. The Board also notes the undated letter provided by the applicant’s primary care provider indicating an array of maladies. The Board, however, finds the ARBA clinical psychologist’s assessment of the applicant’s pre-discharge medical and behavioral conditions to be more thorough and more persuasive than the primary care provider’s assessment. The Board therefore agrees with the clinical psychologist’s assessment that the applicant’s ailments did not significantly impact the applicant’s “ability to perform within his MOS as evidenced by serving in the highest non-commissioned officer rank of Sergeant Major,… attending numerous military schools and trainings, holding various leadership positons, participating in military missions and operations, and serving in deployed environments.” The Board concurs with the clinical psychologist’s observation that “other than for the condition of cervicalgia, [the applicant] had no history of requiring a temporary or permanent profile for psychiatric conditions.” The Board therefore finds that the applicant has not demonstrated by a preponderance of evidence that he failed medical retention standards at the time of his separation. The Board therefore also finds that referral to the disability evaluation system was, and is, not warranted. The Board likewise finds that the applicant’s medical problems are not mitigating for the misconduct that led to his separation. 3. The Board found that there was a properly constituted pre-trial agreement that was not fully performed in conjunction with his separation. The Board determined that the government was obligated to comply with the agreement, regardless of the change in 14 court-martial convening authorities. Consequently, the Board finds that the applicant’s retirement request should be reviewed by the current Fort Sill, OK, GCMCA and forwarded, with an approval recommendation, to the Secretarial Authority for reassessment. This time, the retirement request and allied documents will contain the existing recommendation from the former Fort Carson GCMCA and a new recommendation from the current Fort Sill GCMCA. Each will recommend, in accordance with the pre-trial agreement, that the retirement be approved. Pending a decision by the Secretarial Authority, the Board determined it would be improper to revoke the applicant’s 31 October 2016 separation orders. 4. The Board determined that the records were sufficient to render a fair and equitable adjudication and that a personal appearance was not necessary. 5. After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. 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 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: - Showing that his request to retire effective 1 April 2016 was supported and recommended for approval by the Fort Sill General Court Martial Convening Authority (GCMCA), and; - His request to retire was forwarded to the Secretarial Authority for action with the approval recommendations from both the Fort Carson and the Fort Sill GCMCA. 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 entering him into the disability evaluation process, revocation of his separation orders and back pay and allowances. X CHAIRPERSON 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Section II (Administrative Board Procedure), chapter 2 (Procedures for Separation), states a Soldier will be notified of the names and addresses of witnesses expected to be called for the board hearing. He/she will also be informed that the board's recorder will, upon the Soldier's request, try to arrange for the presence of any available witness that he/she desires. A decision made by the board president is subject to the convening authority overruling it, upon application by either the recorder or the respondent. b. Paragraph 3-7a stated an honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. c. Chapter 12 (Retirement for Length of Service). (1) The retirement authority for Active Army Soldiers in the grade of staff sergeant (promotable) and above, and who have less than 30 years of service, is the Commander, U.S. Army Human Resources Command. Soldiers who have completed 20, but less than 30 years of active Federal service is eligible for, but not entitled to retire upon request. All requests for retirement of eligible Soldiers with less than 30 years of service are considered on their individual merits. Such requests normally should be approved. Requests, however, may be disapproved, or the required date of retirement delayed, based on the best interests of the Army. (2) NCOs holding the grade title of SGM at retirement will be placed on the retired list in the grade title of CSM if their records reflect honorable service as CSM and they were released from the CSM program (voluntarily or involuntarily) due to an assignment-limiting medical or physical condition, or to serve as SGM in any duty assignment. NCOs released from the CSM Program due to unsatisfactory conduct as a CSM will not be place on the retired list as a CSM. d. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating members for misconduct. Action was to be taken to separate Soldiers for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) pertained to Soldiers who committed misconduct that warranted separation and a punitive discharge was, or would have been, authorized for the same offense under the UCMJ. Any Soldier convicted of a sexual offense listed in paragraph 24-2 (Registration of Military Sexual Offenders – Covered Offenses), AR 27-10, but whose sentence had not included a punitive discharge, was to be processed for separation. 2. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial, in effect at the time, showed the maximum punishment for violating Article 120 (Aggravated/Abusive Sexual Contact with a Child), UCMJ, included both a dishonorable and bad conduct discharge. 3. AR 27-10, in effect at the time, prescribed policies and procedures pertaining to the administration of military justice, and the implementation of the Manual for Court-Martial. a. Paragraph 24-2 addressed the requirement to register military sexual offenders and listed covered offenses. Included was aggravated or abusive sexual contact with a child. b. Effective 1 January 2019, the Army implemented a revised version of AR 27-10. The changes implemented the Military Justice Act of 2016 and included policy and procedural updates. (1) In general, this newest iteration was the controlling policy for all aspects of military justice, except for courts-martial referred prior to 1 January 2019. In particular, changes outlined in paragraph 5-43 (Compliance with Plea Agreements) were not shown to be applicable to courts-martial referred prior to 1 January 2019. (2) Paragraph 5-43 stated, if a Soldier was transferred to a PCF and there was a plea agreement in the court-martial that resulted in the post-trial confinement, the convening authority of the gaining unit will, on behalf of the convening authority who entered into the plea agreement, comply with all terms and conditions in the plea agreement. 4. DODI 1332.14 (Enlisted Administrative Separations), currently in effect, states the presiding officer will rule finally on all matters of procedure and evidence, but the majority of the board may override the president's rulings. a. The respondent may request the attendance of witnesses in accordance with the Military Department's implementing instructions (i.e. regulations). In accordance with those implementing instructions, the respondent may submit a written request for temporary duty or invitational travel orders for witnesses. b. The convening authority may authorize funds for the production of witnesses only if the presiding officer, after consulting with a judge advocate, determines: * the testimony is not cumulative * the witness' personal appearance is essential to a fair determination on issues of separation and character of service * written or recorded testimony will not adequately accomplish the same objective * the need for live testimony is substantial, material, and necessary for proper case disposition * the significance of the witness' personal appearance, when balanced against the practical difficulties in producing that witness, favors the production of the witness; factors for consideration include the cost, timing, potential for delay, and likelihood of significant interference with military operations 5. AR 40-501 (Standards of Medical Fitness), in effect at the time, prescribed policies and procedures for a determining medical fitness for accession and retention. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) outlined the various medical conditions that could render a Soldier as unfit for further military service, and indicated standards for determining whether the Soldier met medical retention standards. Soldiers with permanent level 3 (significant limitations) or 4 (drastic limitations) physical profiles required referral to an MEB, as were those Soldiers who not meet medical retention standards after attaining the Medical Retention Determination Point (MRDP). MRDP is that point where the Soldier's medical progress appears to have stabilized, the course of recovery is fairly predictable, and the Soldier is most likely unable to perform duties required of his MOS and grade. 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army's disability evaluation system (DES) and set forth policies, responsibilities, and procedures governing the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability). 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. b. Chapter 4 (Procedures), section I (Eligibility for Disability Evaluation) described situations where a Soldier might not be eligible for processing within the DES. (1) The case of a Soldier charged with an offense under the UCMJ for an offense that could result in a punitive discharge, could not be referred for, or continue in disability processing unless the officer exercising proper court-martial jurisdiction dismissed the charges or a court-martial could not adjudge a punitive discharge. (2) An enlisted Soldier against whom his/her commander had initiated separation action, and for which a character of service of under other than honorable conditions discharge was authorized, was not to be referred into or continue processing through the DES. when: (3) T he co m m an de r wi th G C M C A co ul d ab at e th e ad ve rs e se pa ra tio n ac tio n * h e / s h e d e t e r m i n e d t h e d i s a b i l i t y w a s t h e c a u s e , o r w a s a s u b s t a n t i a l l y c o n t r i b u t i n g c a u s e , o f t h e m i s c o n d u c t t h a t m i g h t r e s u l t i n a d i s c h a r g e u n d e r o t h e r t h a n h o n o r a b l e c o n d i t i o n s * the re we re oth er cir cu ms tan ce s tha t wa rra nte d dis abi lity pr oc es sin g c. Appendix E (Personnel Processing Actions) stated enlisted personnel discharged because of physical disability would normally be characterized as honorable, but a general discharge under honorable conditions was also authorized when that Soldier's service was satisfactory but not sufficiently meritorious to warrant an honorable characterization. 7. DODI 1332.18 (DES), currently in effect, outlines DOD policy for the implementation of Federal law with regard to disability processing. Appendix 2 to Enclosure 3 (Standards for Determining Unfitness due to Disability or Medical Disqualifications) states the DES compensates disabilities when they cause or contribute to career termination. a. Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service. b. Service members can overcome this presumption by presenting a preponderance of evidence that he/she is unfit for military service; the presumption can be overcome when: * an illness or injury occurs within the presumptive period (i.e. Service member has an approved voluntary retirement or is within 12 months of his/her retention control point/expiration of active obligated service) such that it would prevent the performance of further duty, if they were not retiring * a serious deterioration of a previously diagnosed condition, including those that are chronic, takes place during the presumptive period and this deterioration would preclude further duty, were they not retiring * the condition causing the Service member to be referred into the DES is chronic, and the preponderance of evidence affirms the Service member was not performing duties commensurate with his/her rank before the start of the presumptive period 8. DOD Manual (DODM) 1332.18, Volume 2, prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. The Integrated Disability Evaluation System (IDES) is a joint Department of Defense and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. b. In consultation with the Soldier's commander and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions into IDES. (1) The VA provides the medical examinations (identified as C&P examinations) of the disabling conditions. Then, based on the VA's medical examinations, an MEB makes an assessment to identify those medical conditions that fail to meet medical retention standards. All conditions failing retention standards are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). Each rated disability is assigned a code by VA in accordance with the schedule of ratings within the VASRD. (3) Upon receipt of the disability rating(s) from the VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 9. 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. a. 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 on the basis of 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. b. 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. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. b. By law, the Army may pay claims for amounts due to applicants as a result of the correction of military records. The ABCMR will furnish the Defense Finance and Accounting Service (DFAS) a copy of decisions that potentially will affect monetary entitlements and benefits. DFAS will settle the claims.