BOARD DATE: 8 June 2020 DOCKET NUMBER: AR20200001558 APPLICANT REQUESTS: reconsideration of his previous request for: * reinstatement in the U.S Army Reserve (USAR) * payment of all back pay and allowances from 6 May 2011 * restoration of his rank of sergeant first class (SFC) effective 24 March 2011 * processing through the Integrated Disability Evaluation System (IDES) * correction of Block 28 (Narrative Reason for Separation) on DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of 6 May 2011 to show he was separated by reason of physical disability APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Temporary Profile * Letter from the Commanding General * NCO Evaluation Report * Aurora Time Off Memo * DA Form 4856 (Developmental Counseling Form) * Letter of Support * Notification of Deployment * Favorable Deployment/Retention in the Army Counseling * Report to training Annual Training Memorandum * Orders 099389 Report to Annual Training FACTS: 12. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers: * AR20120007090 on 11 July 2013. * AR20130015948 on 19 June 2014 * AR20150012788 on 15 November 2016 2. The applicant states he received P-3 Permanent profile stating he needed a non- duty related (NDR) PEB. He wasn't on notice he was facing adverse separation from the Army based on the Battalion Commander providing an option for him to remain on active duty. He was manifested for deployment on 1 July 2010 by his command. Therefore everything listed on the 17 September 2010 counseling had no bearing on the same command selecting him for deployment. Commanding General stated that the records he reviewed showed great service. The Legal review was held at the same command where the board was held. 3. The applicant provided: a. In a memorandum, dated 11 September 2018, BG XXX states even though the applicants records speak well of his service, he doesn’t have the authority to overturn his administrative separation. b. DA Form 2166-8 (NCO Evaluation Report (NCOER)) covering period 31 March 2009 through 31 December 2009. He received two “Excellence” and three “Success” ratings.” c. A letter from Behavioral Health Care stating the applicant was a patient with them from 20 May 2010 through 22 May 2010 for depression. They recommended the applicant take a leave of absence to reduce stress and attention the family stressors. The applicant could return to work after assessed again after a week of leave. d. Developmental Counseling dated 25 May 2010, disapproving the applicant’s request for the week leave he was recommended to take. e. Developmental Counseling dated 1 July 2010 stating the applicant was selected for mobilization to fill a critical position The counseling shows dates of all the training the applicant was to attend. f. Travel itinerary dated 25 May 2010, showing dates of travel to training. Applicant traveled to training on 26 May and again on 30 June. g. Order Number 099389 dated 24 May 2010 sending the applicant on temporary duty for 36 days to Fort Hunter Liggett, California. h. Patient appointment slips dated 11 February 2020 showing the applicant had mental health appointments on the 24th and 27th of May and 2nd, 9th, and 16th of June. j. A DA Form 4187 dated 21 June 2010 shows the battalion commander stated the applicant is scheduled for deployment in October 2010. After his deployment he will be eligible for permanent change of station (PCS). j. A letter from SFC XXX states that the applicant did not know his job and was not trained in the military occupational specialty (MOS) of 91B (Light Wheeled Vehicle) which is the requirement to sit in a Motor sergeant position (91X). In his opinion, the applicant’s discharge was not leveled with proper actions to reflect regulation and or fairness. The chain of command wanted all of the counseling that he completed on the applicant and none of the counseling he completed had ever gone past forgetting to tell about an appointment or arriving late. He further states that he was contacted by the command sergeant major (CSM) by cell phone who informed him that if he did not come up with a counseling statements that the battalion commander (BC) was going to write him a letter of reprimand. The applicant was not the only one who showed up late and did not receive counseling. The BC and CSM accused the applicant of taking a 5 day pass and wanted him and SFC XXX to write a memorandum stating that they did not give him the pass. He was contacted by the inspector general referencing the counseling and later he was told that he was on the BC hit list. While he was at the Senior Leaders Course at Fort Lee, his equipment, file folders were pulled, and work history destroyed or missing, and the SAMS1-E (Standard Army Maintenance System- Enhanced) had been messed with, with no reports printing to reflect positive information. So he replaced the paper work with copies from AMSA 96 (Area Maintenance Support Activity-96) and fixed the SAMS1-E in 7 days, this action put him back on the BC hit list and he was told not to show up for Wednesday meetings until told to do so. He does not believe the applicant did all that he was said to have done. k. DA Form 3349 dated 14 July 2010 shows the applicants temporary profile ended on 12 October 2010. 4. A review of the applicant’s service records shows: a. Having had prior enlisted service, the applicant enlisted in the United States Army Reserves (USAR) on 30 March 2010. He held military occupational specialty 91C (Utilities Equipment Repairer). b. He was ordered to active duty in the Active Guard Reserve (AGR) effective 26 May 2010 for three years. He received numerous Developmental Counseling Forms between May 2010 and October 2010 on topics related to: * sub-standard performance and conduct * suicidal ideations * annual training attendance * failure to make scheduled payments on his government credit card * displaying disrespect toward commissioned officers and senior noncommissioned officers, including communicating a threat * disobeying a direct order from his battalion commander * mobilization and deployment c. On 2 June 2010, his battalion commander notified him that he was being referred for a mental health evaluation. On or about 14 June 2010, he underwent a command- directed mental health evaluation. On 17 June 2010, the evaluating psychologist diagnosed him with adjustment disorder with disturbance of emotions and conduct; however, he recommended no further precautions or additional supervision. Additionally, he stated: No change in duty status is recommended based on today's evaluation. This Soldier has the mental capacity to understand and participate in the proceedings, was mentally responsible, and meets the psychiatric retention requirements of Chapter 3, AR (Army Regulation) 40-501 (Standards of Medical Fitness, Medical Standards for Retention and Separation, including Retirement). d. On 10 August 2010, he received a permanent physical profile for asthma and depression with anxiety. The examining physician assigned him a numerical rating of "3" in the PULHES factor "P" (Physical Capacity or Stamina), indicating he had one or more medical conditions or physical defects that may have required significant limitations. (1) Item 4c (Profile Type – If a Permanent Profile with a 3 or 4 PULHES, does the Soldier Meet Retentions Standards in accordance with (IAW) Chapter 3, Army Regulation 40-501) of his Physical Profile is void of a checkmark, indicating the examining physician did not assess his ability to meet the retention standards of Army Regulation 40-501, Chapter 3, or his need for further evaluation by an MEB/PEB. (2) Item 10 (Other: e.g. Functional Limitations and Capabilities and Other Comments…) of his Physical Profile contains the entry "SM (Service Member)'s asthma restricts the wear of chemical protective mask." (3) His record is void of documentation that shows he was referred to, or evaluated by, either an MMRB (MOS/Medical Retention Board) or an MEB (medical evaluation board). e. He received a DA Form 2166-8 (NCO Evaluation Report (NCOER)) covering period 1 January 2010 through 31 December 2010. His rating consisted of three “Needs Improvements,” and two “Success” f. On or about 27 September 2010, the applicant was notified of his commander's intent to initiate separation action against him under the provisions of AR 635-200, Chapters 13 and 14. g. On 5 January 2011, the applicant underwent a medical evaluation and physical exam at Luke Air Force Base, AZ. Based on the findings of the medical examination and a review of the applicant's medical records, the examining PA-C recommended the applicant's return to full duty without any restrictions. The PA-C further stated: (1) The applicant had no conditions that would warrant duty assignment limitations or any notation in his permanent medical record reflecting physical or mental impairment (2) He should undergo a pulmonary function test to properly gauge the severity of his asthma – this test should be repeated annually g. On 21 January 2011, an administrative separation board convened to consider the applicant's separation under the provisions of AR 635-200, Chapters 13 and 14. The board found that/recommended: * demonstrating that he was unqualified for further military service because of unsatisfactory performance to wit, engaged in a pattern of behavior consisting of substandard performance * demonstrating a pattern of misconduct, consisting of discredited conduct and conduct prejudice to good order and discipline * demonstrated commission of a serious offense * the board recommended the separation under the provisions of AR 635-200 for the acts described above with a characterization of service as general under honorable conditions * the board did not recommend separation authority suspend the applicants recommended discharge h. A memorandum, dated 3 February 2011, request for suspension of discharge of the applicant by the senior defense counsel because the applicant’s records show a high potential for full and continued effective duty. i. A memorandum, dated 3 February 2011, legal review of the applicant’s board proceedings found that the proceedings were legally sufficient and that no errors were found and recommended approval with an under honorable conditions discharge. j. On 9 February 2011, the separation authority approved the board’s recommendation and directed the applicant be separated and issued a general discharge under honorable conditions. The applicant was counseled that the reasons for the commander’s action are: * the applicant is unqualified for further military service because of unsatisfactory performance by expressing his intent to disobey orders * the applicant sent derogatory and or accusatory statements regarding his chain of command * the applicant failed to maintain military maintenance duties * the board found by a preponderance of evidence that the applicant demonstrated a pattern of misconduct by providing false information to superior officers by engaging in insubordinate and disrespectful conduct towards his chain of command, and or communicating a threat of physical harm to himself. k. He was discharged on 6 May 2011. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct with a general, under honorable conditions characterization of service. He completed a total of 10 years and 18 days of active military service and 2 years, 6 months, and 2 days of inactive military service. It further shows. l. In accordance with AR 600-8-10 (Enlisted Promotions and Reductions), paragraph 4-16a, the Enlisted Promotion Branch administratively removed him from the Fiscal Year (FY) 2011 AGR Sergeant First Class Promotion Selection List due to his pending discharge effective 5 May 2011. m. On 8 July 2011, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge. However, the ADRB determined that item 27 (Reentry Code) of his DD Form 214 was erroneous, changed it to reflect an RE code of "3," and issued him a new DD Form 214. n. On 11 June 2014 (Docket Number AR2010015948), the ABCMR considered his petition for reinstatement in the USAR, payment of all back pay and allowances from 6 May 2011, restoration of his rank of SFC effective 24 March 2011, processing through the Integrated Disability Evaluation System (IDES), and correction of the Narrative Reason for Separation on his DD Form 214 for the period of 6 May 2011 to show he was separated by reason of physical disability. However, the Board found insufficient evidence of an error or an injustice and denied his request. The Board noted that his administrative separation under the provisions of paragraph 4-12c of AR 635-200, for misconduct – pattern of misconduct – and subsequent release from the AGR Program were accomplished in compliance with applicable regulations. His service record is void of procedural errors which would have jeopardized his rights. o. On 15 November 2016, (Docket Number AR20150012788), the ABCMR reconsidered his previous request for reinstatement in the USAR, payment of all back pay and allowances from 6 May 2011, restoration of his rank of SFC effective 24 March 2011; processing through the IDES, and correction of the Narrative Reason for Separation on his DD Form 214 for the period of 6 May 2011 to show he was separated by reason of physical disability. However, the Board again found insufficient evidence of an error or an injustice and denied his request. In connection with this case, the Army Review Boards Agency senior medical advisor rendered a medical advisory opinion of the applicant's case for: * alleged medical conditions that could have resulted in separation through medical channels (i.e. should have been referred to a MEB/PEB) * P3 Profile for Asthma and Depression with Anxiety (August 2010) * P1 Profile for Asthma History and Depression with Anxiety (resolved) (April 2011) (1) The medical advisor opined that the applicant met medical retentions standards in accordance with chapter 3 of AR 40-501 as well as the provisions of AR 635-40 that were applicable to his era of service. His medical conditions were duly considered during separation processing. A review of available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for discharge. Complete advisory opinion was provided to the applicant. (2) The applicant responded and questioned whether his medical records were carefully considered during his separation processing. He then enumerated assertions regarding the manner in which his separation was handled, and restated a chronology of events. Among other events, he mentioned the date he received a temporary profile, completed the profile request form, and was issued the P3 profile. p. On 2 August 2019 (Docket Number AR20180000789), the ABCMR again reconsidered his previous request for reinstatement in the USAR; payment of all back pay and allowances from 6 May 2011; restoration of his rank of SFC effective 24 March 2011; processing through the IDES, and correction of his Narrative Reason for Separation to show he was separated by reason of physical disability. The Board again found no evidence of an error or an injustice and denied his request. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14, paragraph 14-12b, in effect at the time, states members are subject to separation under this provision when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities or conduct which is prejudicial to good order and discipline. 6. DODI 1332.38 (Physical Disability Evaluation) states service members are ineligible for disability evaluation system processing when they are pending separation under provisions that authorize an under other than honorable conditions discharge. The exception is when the medical impairment or extenuating circumstances may be the cause of the misconduct resulting in separation BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was / was not warranted. 2. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 2. 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): REFERENCES: 1. Army Regulation (AR) 40-400 (Patient Administration) assigns responsibilities and provides guidance on patient administration in Army Regional Medical Commands and MTFs. Chapter 7 provides guidance on military personnel physical disability processing. Paragraph 7-1 states: * physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the PDES * Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors, who meet retention standards, are referred to the MMRB * if the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB Liaison Officer (PEBLO) * MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status 2. AR 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 3 provides guidance on medical conditions and physical defects that may render a Soldier unfit for further military service. Paragraph 3-27 (Miscellaneous Respiratory Disorders), sub-paragraph a(2), provides that chronic asthma is cause for a permanent P-3 or P-4 profile and MEB referral if it prevents an afflicted Soldier from wearing a protective mask. b. Table 8-2 (Schedule of Separation Medical Examination or Separation Physical Assessment) requires a medical examination for enlisted Soldiers being processed for separation under the provisions of Army Regulation 635-200, chapter 14. 3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1–32 (Separation and Medical Examinations) provides that commanders will ensure Soldiers initiated for separation under this regulation, who are required to obtain a physical examination, obtain such. Physical examinations and mental health evaluations will comply with Army Regulation 40-501 and other policy guidance issued by the Surgeon General and MEDCOM. In addition to medical examinations, mental status evaluations conducted by a psychologist (or master-level, licensed clinical social worker), are required for Soldiers being processed for separation under chapters 13, 14 and 15. b. Paragraph 1–33 (Disposition through Medical Channels) provides that, except in separation actions under chapter 10, disposition through medical channels takes precedence over administrative separation processing. When the MTF commander or attending medical officer determines a Soldier being processed for administrative separation under chapters 7, 14, or 15, does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEB. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB. If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation 635–40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the PDES when action under the Uniform Code of Military Justice (UCMJ) has not been initiated, and one of the following has been determined: * the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination; and * other circumstances of the individual case warrant disability processing instead of further processing for administrative separation c. 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. d. 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. e. Paragraph 14-12b states a pattern of misconduct consists of one of the following: (1) discreditable involvement with civil or military authorities; or (2) discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army Regulations, civil law, and time-honored customs and traditions of the Army. f. Paragraph 14-12d states that before taking action against a Soldier, because of minor disciplinary infractions or a pattern of misconduct, commanders will ensure the Soldier received adequate counseling and rehabilitation. g. When a Soldier's conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his/her deficiencies. At least one formal counseling session is required before separation proceedings may be initiated for one or more of the reasons specified above. In addition, there must be evidence that the Soldier's deficiencies continued after the initial formal counseling. 4. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 includes a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted 5. 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. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001558 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1