BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20190006208 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 February 2009 as follows: * Amend Item 24 (Character of Service) to show his service was characterized as "Honorable" * Amend Item 28 (Narrative Reason for Separation) to show he was separated due to a "Medical Condition" 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), dated 23 June 2018 * DD Form 214, for the period ending 5 February 2009 * State of Idaho Division of Veterans Services Letter, dated 5 May 2009 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 23 July 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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 in the early winter of 2008, his unit deployed to Iraq. Prior to boarding at the airport, he experienced a seizure that was later diagnosed as epilepsy. He was unconscious and was taken to a hospital at Schofield Barracks for evaluation. Instead of deploying with his unit, he was kept for evaluation. During the subsequent three months, he had several more seizures. He was told in February of 2009 that he was to be discharged because of his condition. 3. A DD Form 2808 (Report of Medical Examination) shows the applicant underwent a medical examination on 20 September 2007, for the purpose of enlistment in the Regular Army. He was found acceptable for service in the Department of the Army. 4. The applicant enlisted in the Regular Army on 27 September 2007. He completed training as a motor transport operator. 5. The applicant was counseled on four separate occasions between 19 June and 11 July 2008. The DA Forms 4856 (Developmental Counseling Form) show he was counseled for the following offenses: * failure to obey a direct order * failure to follow the directions stipulated on his medical profile * failure to keep a clean living area in government quarters * damage of military property and loss of his military identification card * possession of an intoxicating liquid while driving a motor vehicle and insubordination toward a noncommissioned officer (NCO) 6. The applicant received nonjudicial punishment on 18 September 2008, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * failing to go at the time prescribed to his appointed place of duty, on or about 24 June 2008 * being derelict in the performance of his duties, on or about 26 June 2008 * willfully disobeying a lawful order, on or about 9 July 2008 7. The applicant was counseled twice on 6 November and once on 8 November 2008. The DD Forms 4856 shows he was counseled for the following offenses: * failure to be at his appointed place of duty at the appointed time, on two separate occasions * operating a privately owned vehicle in violation of is medical profile and in violation of an order from a commissioned officer 8. The applicant completed a DA Form 2807-1 (Report of Medical History) on 13 November 2008 for the purpose of determining whether he should be referred to a Medical Board. He noted that he had seizures once in a while when he was asleep, that he had a seizure while he was at Hickam Air Force Base, and that he was sent to "Tripler." The comments made by the examiner noted that the applicant had a seizure while he was at Hickam Air Force Base and that he was sent to Tripler Army Medical Center (TAMC) for treatment. The examiner further noted that during the TAMC seizure work-up, nothing was found by the neurologist. 9. The applicant was counseled on 2 December 2008. The DA Form 4856 shows he was counseled by his detachment commander regarding his actions and he was informed of his commander's intent to administratively separate him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for acts or patterns of misconduct. 10. The applicant underwent a medical examination on 23 December 2008. The DA Form 2808 (Report of Medical Examination) shows he was examined at Troop Medical Clinic, Schofield Barracks, Hawaii, for the purpose of separation from the Army. The DA Form 2808 shows he was determined to be qualified for service and that he had no significant or disqualifying defects. 11. The applicant, at the direction of his command, underwent a mental status evaluation on 6 January 2009 for the purpose of determining whether he should be discharged for misconduct. The DA Form 3822-R (Report of Mental Status Evaluation) shows his behavior was normal, he was fully alert, he was fully oriented, his mood or affect was unremarkable, his thinking process was clear, his though content was normal, and his memory was good. It was the opinion of the Psychiatric Nurse Practitioner that the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. The Psychiatric Nurse Practitioner noted: a. There was no evidence of a psychiatric condition that would prevent the applicant from participating in an legal or administrative actions. b. The applicant met the retention requirements of Army Regulation 40-501, Chapter 3, and did not meet the criteria for a medical evaluation board (MEB). In other words, there was no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels. c. The applicant had been screened for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). Any positive symptoms had been clinically evaluated, treated when requested, or if symptoms were medically significant, did not warrant disposition through medical channels, and did not directly contribute the factors leading to his separation. d. The applicant was responsible for his behavior, he could distinguish right from wrong, and he possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings. 12. The applicant was counseled on 9 January, 12 January, and 13 January 2009 for the following offenses: * failure to be at his appointed place of duty at the appointed time * loss of his identification card * burning a door sign in the barracks 13. The applicant's commanding officer notified the applicant on 28 January 2009 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. As the basis for his recommendation, the commander cited the applicant's pattern of misconduct consisting of various failures to report to his appointed place of duty, willfully disobeying a lawful order from an NCO, blatant disrespect of an NCO, loss of his military identification card (twice), willfully disobeying a command from his superior commissioned officer, and willfully destroying the door sign in the barracks. 14. The applicant's acknowledgement of receipt of the separation notification and his consultation with counsel are not available. A review of the available records fails to reveal any statement he may have submitted in his own behalf. 15. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct on 28 January 2009. The proposed separation action was reviewed by a Judge Advocate Trial Counsel for legal sufficiency on 28 January 2009. 16. The separation authority approved a recommended discharge on 28 January 2009 under the provisions of Army Regulation 635-200, paragraph 14-12b (pattern of misconduct), and directed the applicant's service be characterized as under honorable conditions (general). 17. The applicant was discharged on 5 February 2009 under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. His DD Form 214 confirms he completed one year, four months, and nine days of net active service this period. Item 24 shows his service was characterized as "under honorable conditions (general)" and item 28 shows his narrative reason for separation was "pattern of misconduct." 18. A review of the available records fails to show that the applicant was being treated for any unfitting condition that would have warranted his processing for discharge through medical channels. 19. The Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and on 5 March 2010, voted to deny his request for an upgrade of his discharge. 20. The applicant provides a VA Form 21-4138, dated 23 July 2018, in which he states that although he was guilty of at least three incidents of misconduct, he believes they were minor. He remember one time he was drinking and the next morning he did not report to formation and roll-call. Another time, he and others were drinking in the barracks and they all got loud and boisterous, and they were all disciplined. A third incident involved him loaning his pickup truck to a buddy who drove it off base. The next morning he was awakened by the military police and an officer and he was asked why his truck was "in the gate." Apparently his buddy drove it into the gate. His truck was impounded but he does not recall receiving any other disciplinary actions. He is sorry for his misconduct. He was immature and he wishes he could go back and do all of his service over again because he is ashamed of it. He contends he was discharged for medical reasons, not because of his misconduct. 21. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. 22. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). 2. On his pre-separation Report of Medical History (DD Form 2807-1), the applicant wrote, "I had seizures once in a while when asleep. I had a seizure at Hickam [AFB] and went to Tripler [Army Medical Center, or TAMC].” The provider annotated “TAMC for seizure work-up, nothing found by neurologist.” Review of the electronic medical records show that his work-up, which included an awake/drowsy/asleep electroencephalogram (EEG) and both a CT and MRI of his brain, found no neurological disease. There are no medical issues listed on his pre-separation Report on Medical Examination (DD 2808). His pre-separation Report on Mental Status Evaluation (DA Form 3822-R) states, “There is no evidence of a psychiatric condition which would prevent this soldier from participating in any legal or administrative actions. This soldier meets the retention requirements of chapter 3, AR 40-501 [Standards of Medical Fitness]; and does not meet the criteria for a MEB.” 3. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. There is no evidence the applicant had any medical condition which was a contributing factor to his misconduct. There is no condition, mental health or otherwise, which would mitigate his misconduct. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's claim regarding seizures and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the ARBA Medical Advisor regarding his misconduct not being mitigated by any medical conditions and the absence of any medical conditions that would have warranted referral for disability evaluation for a possible discharge for medical reasons. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation and the reason for his separation were not in error or unjust. 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, U.S. Code, 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. Title 10, U.S. Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay. 3. Army Regulation 40-501, Chapter 3, provides medical fitness standards for retention and separation, including retirement. a. Paragraph 3-3 states that Soldiers with conditions listed in this chapter who do not met the required medical standards will be evaluated by an MEB as defined in Army Regulation 40-400 (Medical Services – Patient Administration) and will be referred to a Physical Evaluation Board (PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. Paragraph 3-4 states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions listed to an MEB. It is critical that MEBs are complete and reflect all of the Soldier's medical problems and physical limitation. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency will consider the results of the MEB as well as the requirements of the Soldier's military occupational specialty in determining fitness. 4. Army Regulation 635-40, paragraph 3-2b(2), then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006208 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006208 9 ABCMR Record of Proceedings (cont) AR20190006208 7