IN THE CASE OF: BOARD DATE: 31 August 2022 DOCKET NUMBER: AR20210015385 APPLICANT’S REQUEST: Reconsideration of his previous Army Board for Correction of Military Records (ABCMR) decision. Specifically, he requests a physical disability separation or retirement with severance pay and promotion to the rank/grade of sergeant first class (SFC)/E-7. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: Applicant’s petition requesting reconsideration FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous considerations of the applicant's case by the ABCMR in Dockets Numbers: * AR2001059305 on 29 January 2002 * AR2002072939 on 8 April 2003 * AR20200009560 on 7 January 2021 3. As a new argument, the applicant states: a. He totally disagrees with the Board’s decision for his reconsideration in Docket Number AR2002072939 [which provided him an upgrade to honorable]. He believes documents showing he was the Soldier of the Quarter twice, the runner up for Soldier of the Year, selected to the Honor Guard for 4 years, and worked as a physical fitness grader for several years, was withheld from the Board to paint him as a bad Soldier. He also believes his medical documents were not given consideration. He also wonders if the Board considered the pressure, he was under to sign the Chapter 10, after being illegally arrested in Michigan, shackled like an animal, and transferred via commercial air in uniform to a prison in Fort Knox, KY for 9 days. b. His promotion to SFC on 5 February 1995 could have been easily confirmed by checking the Army Times selection list. The suspension of favorable personnel action (FLAG) mentioned on page 10 was ordered removed by the Inspector General (IG) after he passed the Army Physical Fitness Test (APFT), but his command ignored the order to remove it. He will be appealing the Boards decision to the Assistant Secretary of the Army and providing all his original awards and plaques. If he was not a black man maybe he would have been relocated after cleaning up the 323rd Hospital. Lastly, "Why was his 2003 case number AR2002072939 case not considered? " 4. The applicant’s service record shows: a. On 15 August 1986, he enlisted into the U.S. Army Reserve (USAR). He was ordered to active duty in an Active Guard/Reserve (AGR) status on 28 January 1990 and was selected for promotion to staff sergeant (SSG) on 1 December 1992. b. On 2 May 1997 the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was reduced to private/E-1 effective 14 April 1997 and his service was characterized as under other than honorable conditions. The narrative reason for separation was shown as "in lieu of trial by court- martial." c. On 18 October 1999, the Army Discharge Review Board (ADRB) denied the applicant's request to change the character and/or reason for his discharge. The board found the evidence of record showed he was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. After consulting with legal counsel, he voluntarily and in writing requested separation from the Army in lieu of trial by court-martial. d. On 2 November 1999, a Department of Veteran’s Affairs (VA) Rating Decision noted the applicant was evaluated for psychosis at 50-percent (%) disabling, and this was increased to 100% effective 3 May 1997. His evaluation of a history of sarcoidosis remained at 0%. e. On 22 June 2000, the ABCMR denied the applicant's request for upgrade of his characterization of service to honorable and narrative reason for separation to medical retirement. The Board determined: his voluntary request for separation to avoid trial by court-martial was presumed to be administratively correct and in conformance with applicable regulations. The Board noted his military service was not interrupted by physical disability and considering he was charged with an offense for which he could be dismissed or given a punitive discharge, he was not eligible for physical disability processing. There was no evidence of record, nor did the applicant provide sufficient evidence, which would indicate he suffered from any medical condition of such severity that rendered him unable to reasonably perform the duties of his office, rank, grade, or rating. f. On 29 January 2002, the ABCMR denied the applicant's request for reconsideration of ABCMR Docket Number AR1999033789. The Board determined: The discharge authority had no "discretion" in the processing of an individual for medical separation when the individual had charges pending before a court-martial. His Noncommissioned Officer Evaluation Reports (NCOERs) showed he was performing his assigned duties in a satisfactory manner until his misconduct was referred to court- martial. Thus, he was shown to be fit for duty in accordance with regulations. His voluntary request for separation was administratively correct and in conformance with applicable regulations. There was no indication the request was made under coercion or duress or that he withdrew his request. g. On 8 April 2003, the applicant applied to the ABCMR for an upgrade of his discharge. The Board considered his entire service record and voted to approve his request to correct his records by upgrading his discharge, restoring his rank to SSG with back pay and allowances, and expunging all references to the disciplinary action that led to his discharge. However, the Board denied his request for a physical disability separation or retirement, and noted the following: (1) The board concluded: (a) The applicant was diagnosed with sarcoidosis in June 1994 and treated with steroids. There is no definitive medical evidence that proves the use or misuse of steroids caused his current diagnosis of schizophrenia. His NCOER history shows he was capable of performing his duties up until at least July 1996 and was not unfit to perform his military duties. (b) The Board is cognizant that the VA diagnosed him with an adjustment disorder with depressed mood, depression secondary to sarcoidosis, and sarcoidosis, shortly after his discharge. His is currently rated 0 percent for this condition and it appears it would not have been an unfitting condition at the time of his discharge from the Army. Additionally, any disability severance pay he would have received by the Army would have been offset by the VA. (c) The applicant was not charged with disrespect toward a superior officer until March 1997, one year after the two specifications of disrespect occurred. There is a perceived bias regarding reprisal which raises material doubt about the fairness of the charges against the applicant. As a result of these unfair or improper charges, the applicant was led to request discharge in lieu of trial by court-martial. The approval of his request led to his administrative reduction to pay grade E-1 and receiving a discharge under other than honorable conditions. (d) It appears he was not physically unfit. Therefore, correction of his records to show he was separated for physical disability would not be appropriate. In view of the perception of bias in the handling of his administrative discharge, it would be equitable to grant the other relief requested. (2) The board recommended: (a) All of the Department of the Army records related to his case be corrected by showing the applicant was honorably discharged on 2 May 1997 under the provisions of Secretarial Authority in the rank/grade of SSG/E-6 and expunging all documents pertaining to his administrative discharge in lieu of trial by court-martial from his records. (b) Payment of all pay and allowances that will become his due as a result of this correction. h. The Army Review Boards Agency (ARBA) legal advisor opined on 21 May 2003: (1) There is no legal objection to the proposed conclusion and recommendation to remove the separation in lieu of trial by court-martial from the applicant's record and separate him from the service at the expiration of his term of service with an honorable discharge. (2) His medical and personnel records clearly support his assertion that he developed his current medical condition around the time that these offenses were alleged to have occurred. The record also supports his contention that his decision to accept a discharge in lieu of trial by court-martial was clouded by his poor mental health. Because his mental health was not thoroughly investigated at the time of his discharge, a determination of whether his mental health condition was unfitting at the time of his separation is problematic. (3) A medical separation from the service would have little practical effect because the applicant already receives a 100% disability from the VA. The VA would be compelled to offset any separation pay awarded as a result of a medical separation. The applicant will likely be better served by an honorable discharge. i. The Army Review Boards Agency informed the applicant's counsel via letter, dated 5 June 2003, that his records had been corrected and a corrected DD Form 214 was issued. The Defense Finance and Accounting Service was also informed of the corrections, and he was to receive all back pay and allowances due as a result of the correction. His corrected DD Form 214 shows the following corrections: * item 4a (Grade, Rate or Rank) – SSG * item 4b (Pay Grade) – E-6 * item 18 (Remarks) – Service Characterization upgraded 5 June 2003 following Application dated 3 October 2002 * item 24 (Character of Service) – Honorable * item 28 (Narrative Reason for Separation) – Secretarial Authority j. On 28 February 2020, the applicant applied to the ABCMR for reconsideration of his previous request for a physical disability separation or retirement with severance pay denied in ABCMR Docket Number AR2002072939, on 8 April 2003, promotion to the rank/grade of SFC/E-7, and a personal appearance or video/telephone hearing before the Board. On 7 January 2021, the Board voted to deny his request. The Board discussion noted: a. After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board further found the available evidence was sufficient to fully and fairly consider the case without a personal appearance by the applicant. b. The Board concurred with the recommendation of the Board in Docket Number AR2002072939, dated 8 April 2003, and found no evidentiary basis for additional relief. 1. The Board noted that, although the Board’s previous decision granted the applicant significant relief, facts remain in the record that cannot be overcome. The Board found no evidence indicating the applicant was physically unfit and should have been separated for physical disability. While he may eventually have become physically unfit for continued service, there is insufficient evidence to support a conclusion that he was physically unfit at the time of his separation. The Board determined the discharge he received, as corrected by this Board in Docket Number AR2002072939, was not in error or unjust. 2. The available records do not confirm that the applicant had been selected for promotion to SFC. The Board also noted, that if he was eligible for promotion to that grade, he was flagged, which prevented favorable personnel actions, such as a promotion. The Board found no evidence of error or injustice in the imposition of the flag against him given all the facts of the case. The Board determined the rank/grade he held upon discharge, as restored by this Board in Docket Number AR2002072939, was not in error or unjust. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. With respect to the applicant contentions: 1. His contention that his medical conditions were not considered is not proper as they were previously listed and discussed in his cases. However, based on review of the final proceedings it does not appear his previous cases were forwarded to the ARBA Medical Staff prior to being boarded, and is void of the required ARBA Medical Review. 2. His contention the Board did not see or consider his entire service record to paint him as a bad Soldier is also improper. His service record was discussed in length and used to upgrade his discharge to honorable. 3. His record of promotion to SFC was also previously discussed and he does not provide any new evidence to show he held this grade. Additionally, he has not provided the IG’s Order, that he states was issued to his command to remove the FLAG preventing his promotion. 4. It should be further noted, the applicant did not provide additional evidence with this reconsideration, and his contentions are similar to previous applications. He states he maxed his physical fitness test which shows his medical condition did not preclude him from performing his military duties or render him medically unfit. b. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the applicant’s previous ABCMR denial, 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). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting referral to the Disability Evaluation System (DES). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s current DD 214 shows he entered the regular Army on 28 January 1990 and received an honorable discharge on 2 May 1997 under provisions provided in paragraph 5-3 of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996): Secretarial Authority. c. The previous request for referral to the DES was denied by the Army Board for Correction of Military Records on 8 April 2003 (AR2002072939). This review will concentrate on the new evidence submitted by the applicant. d. No new documentation was submitted with the application. e. A 1 May 1996 memorandum in support of reassigning the applicant to a new unit stated he sustained temporary mental health issues which at that time were thought due to steroids he was taking to treat his sarcoidosis: (1) “SSG {Applicant} was admitted to Wright-Patterson Air Force Base Medical Center Inpatient Psychiatric Unit on 26 April 1996 after expressing intentions to inflict harm on his supervisor, Mr. , and an officer, Captain , because of alleged occupational harassment. SSG {Applicant} also has sarcoidosis (a disease affecting his lungs) and is currently on prednisone, which can cause mood instability, e.g., irritability or agitation. (2) SSG Anderson described ongoing job frustration in his current unit for approximately one year, but severe irritability for only the past several months, which corresponds to the time he has been prescribed prednisone. According to both SSG {Applicant} and his supervisor, there is no documented history of prior violent behavior, punitive administrative or judicial actions, or occupational problems. (3) Once he was removed from his job environment and had the opportunity to reflect upon his situation, he improved substantially. In the hospital, he remained calm and his harmful intentions disappeared. His ability to reflect on the consequences of his actions, and to develop appropriate and adaptive plans was altogether restored. He was evaluated by Pulmonology during his hospitalization, and his prednisone dosage was reduced by 50%. After a three- day weekend in the hospital, he was discharged, and has been followed in our Partial Hospitalization Program; he has done quite well since discharge from the hospital. (4) Diagnostically, he suffered a "Prednisone-induced Mood Disorder, that is, he encountered a stressful situation that he normally would have been able to manage appropriately; however, because of the adverse effects of the medication, he was overwhelmed emotionally and turned to thoughts of violence. Given his rapid improvement in the hospital (before his dosage was even reduced), coupled with the significant dosage reduction, I would expect full recovery from this condition. The primary threat to his full recovery is re- exposure to his current unit; the feelings on both sides at work are quite tense, and not are conducive to his recovery. (5) Therefore, we strongly recommend immediate reassignment of this soldier as soon as possible. Reassignment serves the best interests of the soldier and the United States Army Reserves. (6) His condition does not require Medical Evaluation Board (MEB) processing, and he is qualified for world-wide duty. f. The note from his final encounter with the Partial Hospitalization Program is dated 8 May 1996: “Patient assessed individually prior to leaving program. Patient denied active suicidal / homicidal ideation and contracted for personal safety. Patient appropriated to leave program for the day. Anticipate discharge after MIR this morning.” g. It appears the applicant’s mental health continued to deteriorate. From the ROP for AR2001059305: (1) “The specific facts, circumstances and paperwork pertaining to the applicant's discharge under Army Regulation 635-200, chapter 10, are still not available. Of record is a copy of the charge sheet wherein he was charged with violations of the Uniform Code of Military Justice, in particular two specifications of Article 89 (disrespect) and two specifications of Article 134 (communicating a threat). (2) The record shows that following having the charges preferred, the applicant was ordered to report to Fort (Ft.) Knox, Kentucky, for pretrial counseling. An 8 April 1997 Memorandum For Record states that the applicant refused to go to Ft. Knox when he was first ordered to do so. He was subsequently convinced by a fellow sergeant to go and departed on 25 March 1997. While in transit he states he developed chest pains and was taken to a private hospital for care. Upon release, instead of proceeding on to Ft. Knox, he returned to his home in Michigan. His commanding officer states that it was his opinion that the applicant apparently did not wish to comply with the order to report to Ft. Knox and directed that the applicant be placed in pretrial confinement. h. The applicant was subsequently discharged with an under other than honorable characterization of Service on 2 May 1997. i. The actions which led to his discharge were previously mitigated such that his current characterization of Service is honorable. This makes the applicant eligible for DES processing. j. The applicant’s records make clear that he was a high-performance Soldier prior to the onset of his mental health condition. From the AR2001059305 ROP: (1) The applicant was first seen for a mental, emotional, psychological, or psychiatric problem in April 1996. Various outpatient and inpatient periods have yielded the differing diagnoses of drug-induced (prednisone) organic affective syndrome, drug-induced mood disorder, adjustment disorder, narcissistic personality disorder and major depressive disorder. The appropriate diagnosis still does not appear to be final as in October 1998 the VA diagnosed him as paranoid schizophrenic and in its latest determination is using a diagnosis of "psychosis, not otherwise specified ... (2) The diagnoses at the current time are psychosis, not otherwise specified (100%), history of sarcoidosis (0%) and status post hemorrhoidectomy (0% )." k. Review of the applicant’s records in JLV shows the applicant’s ratings remain essentially unchanged, with atypical psychosis (100%), hemorrhoids (0%), and chronic bronchitis (0%) all effective and unchanged from 3 May 1997. l. The evidence shows the applicant’s mental health condition prevented him from effectively functioning as a Soldier and resulted in his untimely separation from the Army. It therefore failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Furthermore, this medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Thus, it was unfitting for continued military service. m. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” n. The actions which led to the applicant’s discharge were due to his mental health condition and have previously been mitigated in full. It is the opinion of the ARBA medical advisor that a referral of his case to the DES is warranted. BOARD DISCUSSION: After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The Board concurred with the advisory official finding actions which led to the applicant’s discharge were due to his mental health condition and a referral of his case to the DES is warranted. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief, including his request to promotion to E7, dependent upon a final medical determination. 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 amendment of the ABCMR's decisions in Docket Number AR2001059305 on 29 January 2002, AR2002072939 on 8 April 2003, and AR20200009560 on 7 January 2021. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 changing his type of discharge without evaluation under the IDES. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 17 September 1990, set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted any time after charges had been preferred and must have included the individual's admission of guilt. A discharge under other than honorable conditions was normally considered appropriate; however, the discharge authority could direct an honorable or general discharge if such was merited by the member's overall record during the current enlistment. When an individual is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retired pay and/or severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 3. Title 38, U.S. Code (USC), sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 4. Title 38, Code of Federal Regulations, part IV, is the VA Schedule for Rating Disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015385 1 ABCMR Record of Proceedings AR20210015385 1