IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20220011174 APPLICANT REQUESTS: in effect, a physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-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 his time in service was honorable. He was an outstanding Soldier who served with pride. He put in his time in combat and as a result now suffers with posttraumatic stress disorder (PTSD) and was working towards a medical retirement when he was unfairly discharged. 3. The applicant underwent a medical examination for the purpose of enlistment on 23 February 2002. His DD Form 2808 (Report of Medical Examination) shows he was qualified for service and assigned a physical profile of 111121. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 5 March 2002 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 6 years on 4 April 2002. He reenlisted in the Regular Army on 10 April 2007 for 3 years and 26 March 2009 for 6 years. 5. A review of the applicant’s Enlisted Record Brief (ERB) shows he served in Iraq from 20 January 2004 to 15 February 2005 and Afghanistan from 29 November 2008 to 27 November 2009. 6. A DA Form 4856 (Developmental Counseling Form), dated 11 June 2010, shows the applicant was counseled to inform him that PFC made a verbal complaint that the applicant had moved PFC wife and one of her children into his residence. The applicant was advised she was married to another Soldier and he needs to remove himself from the situation. He was also advised if his substandard performance continues, action may be initiated to separate him from the Army under AR 635-200. 7. An Inspector General (IG) Action Request, Case #F7100882, requests investigation into a complaint against the applicant alleging he violated Article 134 for participating in an improper relationship with Mrs. , who is legally married to PFC , conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. An IG investigation was initiated and found the amount of creditable evidence indicates the applicant is in an improper relationship with Mrs. and is in violation of Article 134. 8. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment on 30 September 2010 for engaging in an inappropriate relationship with Mrs. , another service member’s wife. 9. A Developmental Counseling Form, dated 29 March 2011, shows the applicant was counseled for inappropriate communication with a minor; after a parent contacted the Rear Detachment Brigade Command Sergeant Major (CSM). He was counselled as follows: a. On 28 March 2011, the Rear D Brigade First Sergeant (1SG) was informed by the Rear D CSM, 1SG _ that Mr. , father of 16 year old , contacted him regarding a text conversation between the applicant and his daughter. told her father the applicant was asking her if she thought he were hot. She also stated the applicant said he wanted to get together with her. Mr. went to the applicant’s home and confronted him about this and the applicant did not deny the conversation. 1SG called and spoke to Mr. after speaking to the applicant in his office on 28 March 2011 at approximately 1645. The applicant told him he just texted her a compliment saying she was pretty. The applicant claimed it was because she has low self-esteem. When 1SG asked if this was all the applicant texted her, he said yes. While speaking to Mr. , he informed 1SG of another girl, 15 year old , who had a similar issue with the applicant that was afraid to say anything to her parents. Mr. gave 1SG phone number to , 's mother, and she called regarding an incident with her daughter this past New Year's holiday. said her daughter told her the applicant gave her alcohol and threatened to tell her parents she was drinking if she did not send the applicant a nude picture of herself. Her mother informed 1SG , sent the picture. This behavior is unacceptable and not upholding of the Army values. It creates an adverse impact on morale, good order, and discipline in the unit. Should this occur again he will recommend UCMJ be taken by the commander. b. The applicant was hereby counseled for the above indicated misconduct and/or unsatisfactory duty performance IAW AR 635-200, chapter 1, paragraph 1-16. If his substandard performance continues, action may be initiated to separate him from the Army under the provisions of AR 635-200. If his substandard performance continues, action may be initiated to separate him from the Army under the provisions of AR 635- 200. If he is involuntarily separated, he could receive an Honorable discharge, a General (Under Honorable Conditions) discharge, or an Under-Other Than Honorable Conditions discharge. An Honorable discharge may be awarded under any provisions. A General discharge may be awarded for separation under all chapters. An Under Other Than Honorable Conditions discharge may be awarded for separation under chapter 14, AR 635-200. If he receives an Honorable discharge, he will be qualified for most benefits resulting from military service. An involuntary Honorable discharge however will disqualify him from reenlistment for a period of time and may disqualify him from receiving transitional benefits (e.g. commissary, housing, health benefits and Montgomery GI bill). If he receives a General discharge, he will be disqualified from reenlisting in the service for some period of time and will be ineligible for some benefits, including the -GI Bill. If he receives an Under Other Than Honorable discharge, he will be ineligible for reenlistment and most benefits, including payment for accrued leave, transportation of dependents and household goods to borne, transitional benefits, and the GI Bill. He may also face difficulty in obtaining civilian employment, as employers have a low regard for General and Under Other Than Honorable Conditions discharges. Although there are agencies to which he may apply to have the character of discharge changed, it is unlikely that any such application will be successful. Understand that the initiation of separation may result his release from the custody and antral of the U.S. Army. c. He will be given Administrative Orders Based on Misconduct. He will not violate any of the orders issued him. 10. An Administrative Orders Based on Misconduct was issued based on inappropriate communication with a minor. He was ordered not to consume alcohol at any time or in any form and to have no further conduct with . 11. The applicant was sent a letter from the County Attorney, dated 30 March 2011, advising him that Mr. and Mrs. have made a complaint that he provided alcoholic beverages to their then fourteen year old daughter, this past New Year’s Eve. 12. An Order Granting Bail for Domestic Abuse Cases from the General Sessions Court of County, , and accompanying Incident Report and Arrest Warrant, show the applicant had been arrested for domestic violence against his girlfriend, on 23 August 2011. 13. A DA Form 2823 (Sworn Statement), dated 24 August 2011, from 1SG D_ W. A_, states: On the morning of 24 August 2011, he spoke to [aka ], wife of SPC in 563rd, regarding the incident between her and the applicant on Sunday, 21 August 2011. The applicant was arrested by Police for domestic assault against . He asked her if she was in a dating type relationship with the applicant and she replied yes. She stated they had been living together for some time. confirmed she was still married to SPC at the time, they were in the process of getting divorced, and the applicant was aware of her still being married. The applicant was given an article 15 on 30 September 2010 for having an inappropriate relationship with . He was reduced in rank from SGT to SPC and told not to remain in contact with her by his chain of command. 14. The applicant completed a DD Form 2807-1 (Report of Medical History) on 7 October 2011 for a medical board. He reported the following: * pain in his right shoulder since 2005 * recurring lower back pain * tingling through legs and lower back * pain in the arch of left foot * both knees ache and are stiff 3 or 4 times a month * heartburn every night for 2 years * dizziness following sneezing * severe headaches 3 or 4 times a week for 3 years * occasional car sickness * occasional sharp chest pain * high blood pressure for the past 4 to 5 months 15. An Order Granting Bail for Domestic Abuse Cases from the General Sessions Court of County, , and accompanying Incident Report and Arrest Warrant, show the applicant had been arrested for domestic violence against his girlfriend’s [] cousin, on 27 November 2011. 16. A Developmental Counseling Form, dated 1 December 2011, shows the applicant was counseled for domestic assault. He was counseled as follows: a. He was arrested for domestic assault at approximately 27 November 2011 in County. This is the second time he has been arrested for domestic assault. This behavior will not be tolerated and can result in UCMJ action or separation from service. MSG is recommending UCMJ action be taken by the Commander at this time. b. He will receive a Military Protective Order (MPO) from his chain of command to ensure he is not in a position for this to occur again. He will abide by the MPO. 17. A Developmental Counseling Form, dated 1 December 2011, shows the applicant was counseled for inappropriate relationship. It states the applicant was arrested for domestic assault on or around 29 August 2011. The assault was against who was married to another service member at the time. 1SG spoke to her and asked if they were in a physical relationship and she said yes. He received an article 15 in September 2010 for having an inappropriate relationship with her and were instructed to cease contact with . His conduct in this matter has been unprofessional and will not be tolerated. MSG is recommending UCMJ action be taken by the commander. 18. A Developmental Counseling Form, dated 1 December 2011, shows the applicant received separation counseling for patterns of misconduct. He was counseled as follows: a. The applicant was being counseled for the following patterns of misconduct. On 30 September 2010 he was given an Article 15 for engaging in an inappropriate relationship with another Soldiers wife. On 28 March 2011 the command was informed that he was in an inappropriate communication with a minor. He was even given an Administrative Order to stay away from the minor. On or around 29 August 2011 he was arrested for a domestic assault against the Soldiers wife that he received an Article 15 for back in September 2010. On 30 November 2011 he was arrested again for a domestic assault. He is being recommended for separation from the Army b. The applicant was hereby counseled for the above indicated misconduct and/or unsatisfactory duty performance IAW AR 635-200, chapter 1, paragraph 1-16. If his substandard performance continues, action may be initiated to separate him from the Army under the provisions of AR 635-200. If his substandard performance continues, action may be initiated to separate him from the Army under the provisions of AR 635- 200. If he is involuntarily separated, he could receive an Honorable discharge, a General (Under Honorable Conditions) discharge, or an Under-Other Than Honorable Conditions discharge. An Honorable discharge may be awarded under any provisions. A General discharge may be awarded for separation under all chapters. An Under Other Than Honorable Conditions discharge may be awarded for separation under chapter 14, AR 635-200. If he receives an Honorable discharge, he will be qualified for most benefits resulting from military service. An involuntary Honorable discharge however will disqualify him from reenlistment for a period of time and may disqualify him from receiving transitional benefits (e.g. commissary, housing, health benefits and Montgomery GI bill). If he receives a General discharge, he will be disqualified from reenlisting in the service for some period of time and will be ineligible for some benefits, including the -GI Bill. If he receives an Under Other Than Honorable discharge, he will be ineligible for reenlistment and most benefits, including payment for accrued leave, transportation of dependents and household goods to borne, transitional benefits, and the GI Bill. He may also face difficulty in obtaining civilian employment, as employers have a low regard for General and Under Other Than Honorable Conditions discharges. Although there are agencies to which he may apply to have the character of discharge changed, it is unlikely that any such application will be successful. Understand that the initiation of separation may result his release from the custody and antral of the U.S. Army. c. He will go to all appointments when they are scheduled. 19. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was issued on 21 December 2011. 20. A Developmental Counseling Form, dated 5 January 2012, shows the applicant received counseling for debt avoidance audit. 21. A DD Form 2808 (Report of Medical Examination) shows the applicant underwent a medical examination on 12 January 2012 for the purpose of separation. It shows the applicant had a lower back pain medical condition and was not qualified for service. He was assigned a physical profile of 113121. Block 78 (Recommendations) states recommend command continue to pursue chapter while [medical professionals] pursue Medical Evaluation Board (MEB) on back pain. 22. A DA Form 3349 (Physical Profile) issued on 21 February 2012 shows the applicant was assigned a permanent profile of 113123 for low back pain, PTSD, depression, preexisting visual acuity. He was subsequently referred to the Joint DoD/VA Disability Evaluation Pilot. 23. A DA Form 3947 (Medical Evaluation Board Proceedings), dated 13 April 2012, shows after consideration of clinical records, laboratory findings, and physical examination, the Board finds the applicant has the following medical conditions/defects: * Lumbar Degenerative Disc Disease L4-L5, medically unacceptable IAW AR 40- 501, Chapter 3-39h, 3-41e * PTSD, medically unacceptable, IAW AR 40-501, Chapter 3-33b, 3-41e * Major Depressive Disorder, medically unacceptable, IAW AR 40-501, Chapter 3- 32b, c and 3-41e * Tinnitus, medically acceptable * Heartburn (GERD), medically acceptable * Alcoholism – under current treatment, decreasing use, medically acceptable 24. The MEB recommended the applicant be referred to the Physical Evaluation Review Board (PEB). The applicant agreed with the Board’s finding and recommendations on 30 April 2012. 25. A Developmental Counseling Form, dated 28 June 2012, shows the applicant received counseling for recommendation for separation. He was counseled as follows: a. The applicant had been charged with multiple counts of assault taking place on diverse occasions between 2010 and 2011, along with an account of soliciting an inappropriate nude photo and providing alcohol to a minor. Due to his Commission of a Serious Offense, it is 1LT recommendation that he be administratively separated from the United States Army. b. The applicant was hereby counseled for the above indicated misconduct and/or unsatisfactory duty performance IAW AR 635-200, chapter 1, paragraph 1-16. If his substandard performance continues, action may be initiated to separate him from the Army under the provisions of AR 635-200. If his substandard performance continues, action may be initiated to separate him from the Army under the provisions of AR 635- 200. If he is involuntarily separated, he could receive an Honorable discharge, a General (Under Honorable Conditions) discharge, or an Under-Other Than Honorable Conditions discharge. An Honorable discharge may be awarded under any provisions. A General discharge may be awarded for separation under all chapters. An Under Other Than Honorable Conditions discharge may be awarded for separation under chapter 14, AR 635-200. If he receives an Honorable discharge, he will be qualified for most benefits resulting from military service. An involuntary Honorable discharge however will disqualify him from reenlistment for a period of time and may disqualify him from receiving transitional benefits (e.g. commissary, housing, health benefits and Montgomery GI bill). If he receives a General discharge, he will be disqualified from reenlisting in the service for some period of time and will be ineligible for some benefits, including the -GI Bill. If he receives an Under Other Than Honorable discharge, he will be ineligible for reenlistment and most benefits, including payment for accrued leave, transportation of dependents and household goods to borne, transitional benefits, and the GI Bill. He may also face difficulty in obtaining civilian employment, as employers have a low regard for General and Under Other Than Honorable Conditions discharges. Although there are agencies to which he may apply to have the character of discharge changed, it is unlikely that any such application will be successful. c. the applicant shall attend all appointments to complete separation and clear from the Army. 26. A DA Form 3822 (Report of Mental Status Evaluation), dated 11 July 2012, shows the reason for evaluation as clearance for administrative separation under AR 635-200, Chapter 14-12. The applicant showed no obvious impairments. He was cooperative. His perceptions were normal and was unlikely to be impulsive. He was deemed not dangerous. He was found to have the ability to understand and participate in administrative proceedings, can appreciation the difference between right and wrong, and meets the medical retention requirements (doe not qualify for a MEB). His diagnoses show major depressive disorder by history. He was screened for PTSD, mild Traumatic Brain Injury (TBI), and substance use disorders with negative results. 27. A memorandum, subjected: Commander's Report - Proposed Separation Under 635-200, Chapter 14-12c, Commission of a Serious Offense, dated 18 July 2012, shows a recommendation to separate the applicant from the Army prior to the expiration of his current term of service. The specific, factual reason for action recommended states: On or about 27 November 2011, the applicant assaulted Ms. by pushing her against a microwave cart and into a wall. On or about 27 November 2011, the applicant communicated a threat toward Ms. by saying to her "I will kill you," or words to that effect. On or about 23 August 2011, the applicant assaulted Mrs. by pushing her into a wall and kneeing her in the stomach. Between on or about 31 December 2010 and on or about 1 January 2011, the applicant solicited an inappropriate nude photograph from and provided alcohol to Miss , a child under 16 years of age. The applicant also communicated toward Miss that she is pretty and that she should have sex with him, such language being of an indecent nature towards a child that is under 16 years of age. Between on or about 1 June 2010 and on or about 30 July 2010, the applicant engaged in an inappropriate relationship with Mrs. , a married woman not his spouse. 28. The applicant was notified of the action initiated against him on 18 July 2012 and the specific reason for the recommendation. He was recommended a character of service of Under Other Than Honorable Conditions. He was advised of his right to: * consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days). * obtain copies of documents that will be sent to the separation authority supporting the proposed separation. (Classified documents may be summarized.) * request a hearing before an administrative board, or present written statements instead of requesting board proceedings. * request appointment of military counsel for representation or retain civilian counsel at no expense to the Government. * waive the rights listed above in writing and withdraw any such waiver at any time prior to the date the separation authority orders, directs, or approves separation. * submit a conditional waiver of his right to have his case heard by an administrative separation board. 29. The applicant acknowledged receipt of his notification on 19 July 2012. 30. A memorandum for record, subjected: Separation Physical Exam, dated 19 July 2012, states the applicant was reexamined on 19 July 2012. His exam revealed that he has not had any changes in any of his medical conditions since his November 2011 exam prior to his referral to the MEB process. He continues to have low back pain which at the time in November 2011 was found to be a non-retainable condition. At this time there has been no change to his low back pain. In addition, he continues to be treated for depression which appears also to have had no change in the interim. While his condition was found to be non-retainable by AR 40-501, he does not currently have any condition which requires any immediate intervention. Proceeding with administrative action against this soldier would not jeopardize his health at this time. 31. On 25 July 2012, after consulting with counsel, the applicant requested to have his case heard by an administrative separation board and to be represented by military counsel. He did not submit statements on his own behalf. 32. On 22 August 2012, the process to conduct an Administrative Separation Board was initiated. On 25 October 2012, the applicant was notified to appear before an Administrative Separation Board on 26 November 2012. The applicant acknowledged receipt the same day. 33. In the Board proceeding concerning the applicant on 28 November 2012, the Board carefully considered the evidence before it and found there was sufficient evidence to support a finding that the applicant should be separated for the Commission of a Serious Offense (AR 635-200, para. 14-12c). In light of the findings, the Board recommends the applicant, be discharged from the US Army and that he receives a General Under Honorable Conditions discharge. A preponderance of the evidence supports that the applicant did: * assault Ms. by pushing her against a microwave cart and into a wall on or about 27 November 2011 * communicate a threat towards Ms. by saying to her "I will kill or words to that effect, on or about 27 November 2011 * assault Mrs. by pushing her into a wall and kneeing her in the stomach on or about 23 August 2011 * provide alcohol and solicit a nude photograph from Miss [], a child under the age of 16 * communicate indecent language to Miss , a child under the age of 16, to wit: that she was pretty and she should have sex with you, or words to that effect * engage in an inappropriate relationship with Mrs. , a married woman not his spouse 34. A memorandum, shows the commanding Major General reviewed the MEB and Administrative Separation Board proceedings. He directed the administrative separation proceedings continue. He found the applicant’s mental conditions and medical conditions are not the direct or substantially contributing cause of the applicant’s misconduct and there are no circumstances of the applicant’s case that warrant disability processing. Therefore, disposition through the physical disability system is not appropriate. The findings and recommendations of the administrative separation board are approved and he directed the applicant be discharged from the Army with at character of service as General, under honorable conditions. 35. The applicant was discharged on 17 January 2013 under the provisions of AR 365-200, paragraph 14-12c for misconduct, serious offense with at character of service of Genera, under honorable conditions. 36. On 31 January 2023, the ABCMR requested the applicant provide a copy of his medical records. No response was received. 37. MEDICAL REVIEW: a. 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 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting re-referral to the Disability Evaluation System. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows he entered the regular Army on 4 April 2002 and was discharged under honorable conditions (general) on 13 February 2013 under the separation authority provided by paragraph 14-12c of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Commission of a serious offense. d. On 13 April 2012, a medical evaluation board found his “Lumbar Degenerative Disc Disease”, “PTSD,” and “Major depressive disorder” to fail medical retention standards. e. An administrative separation board was convened on 28 November 2012 to determine if the applicant should be separated under paragraph 14-12c of AR 635-200. The Staff Judge Advocate’s recommendation to the Commander of 101st Airborne Division (Air Assault) and Fort Campbell: Discussion: * Between 1 June and 30 July 2010, the Soldier engaged in an inappropriate relationship with Mrs. ., a married woman not his spouse. The Soldier received a Field Grade Article 15 for this offense (Encl 6). * Between 31 December 2010 and 1January 2011, the Soldier provided alcohol to and solicited a nude photograph from Ms. , a child under 16 years of age. Between 14 March and 28 March 2011, the Soldier sent inappropriate text messages to Ms. , a child under 16 years of age. On 23 August 2011, the Soldier assaulted Mrs. . Finally, on 27 November 2011, the Soldier assaulted Ms. (Encl 6). * On 12 January 2012, during the course of the required medical evaluation the Soldier was identified as failing to meet the required medical retention standards outlined in AR 40-501 (Encl 5). * On 13 April 2012, a medical evaluation board determined that the Soldier suffers from service disqualifying lumbar degenerative disc disease, PTSD, and a major depressive disorder. The board referred the Soldier's case to a physical evaluation board (Encl 4). * On 18 July 2012, the Soldier's company commander notified him of his intent to separate him pursuant to AR 635-200, Active Duty Enlisted Administrative Separations, Chapter 14-12c, Commission of a Serious Offense, with an Under Other than Honorable Conditions characterization of service (Encl 3). * On 25 July 2012, the Soldier met with his detailed defense counsel and requested a hearing before an administrative separation board (End 2). * On 28 November 2012, an administrative separation board convened and determined that a preponderance of the evidence supported the basis for separation indicated in paragraphs 2a and 2b above. The board recommended that the Soldier be separated from the U.S. Army with a General, Under Honorable Conditions characterization of service (Encl 1 ). * A review of the Soldier's military records indicates that he has served on active duty for approximately ten years, he holds a primary MOS of 15J, he has deployed twice in support of contingency operations for a total of 25 months, he has a GT score of 95, he is 32 years old, that he is married, and has one child. * A suspension of favorable actions was initiated on 21 December 2011, for the purpose of the Soldier's separation. ALARACT 436/2011, dated 30 November 2011, directs that suspension of favorable actions will be initiated effective the date the Soldier acknowledges receipt of an "intent to separate" notification memorandum. * In accordance with enclosure 2, paragraph 2(c)5(b)l, DoDI 1332.14, the separation indicates that the Soldier has not deployed in support of contingency operations within the last 24 months and as indicated in the attached behavioral health evaluation, the Soldier does have post- traumatic stress disorder (PTSD) but does not have a traumatic brain injury. In my opinion, the Soldier's PTSD and mood disorder were not a significant contributing factor to the misconduct committed and do not constitute matters in extenuation that relate to the basis for this administrative separation. * In accordance with paragraph 2-6(a), Army Regulation 635-200, I have reviewed the completed administrative board proceedings and find the action legally sufficient. * 3. SJA [Staff Judge Advocate] Recommendations: I recommend that you find the Soldier's mental conditions and medical condition were not the direct cause or a substantial contributing cause of the conduct that led to the recommendation for administrative elimination, that the administrative separation proceeding continue, that the circumstances in the Soldier's case do not warrant processing under the physical disability system, approve the findings and recommendations of the board, and direct that the Soldier be separated from the United States Army with a General, Under Honorable Conditions characterization of service.” f. The applicant’s misconduct and pending separation under paragraph 14-12c of AR 635-200 made him ineligible for referral to the PEB. Paragraphs 4-3a and 4-3b of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) state: * Except as provided below, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. * If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, signed by the General Court Martial Convening Authority (GCMCA), must be forwarded with the disability case file to the PEB. A case file may be referred in this way if the GCMCA finds the following: * The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions. * Other circumstances warrant disability processing instead of alternate administrative separation. g. The Commanding General of the 101st Airborne Division (Air Assault) and Fort Campbell directed the applicant be processed under paragraph 14-12c of AR 635 200 and receive a under honorable conditions (general) characterization of service: “I have reviewed the medical evaluation board proceedings and the administrative separation board proceedings concerning SPC [Applicant], , Delta Troop, 7th Squadron, 17th Cavalry Regiment, 159th Combat Aviation Brigade, 101st Airborne Division (Air Assault), for Commission of a Serious Offense under the provisions of chapter 14-12c, Army Regulation 635-200. I hereby direct that the administrative separation proceedings continue. I find that the Soldier's mental conditions and medical conditions are not the direct or substantially contributing cause of his misconduct, and there are no circumstances of the Soldier's case that warrant disability processing. Therefore, disposition through the physical disability system is not appropriate.” h. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a re-referral to the Disability Evaluation System is warranted. 38. BEHAVIORAL HEALTH REVIEW: a. The applicant requests, in effect, a physical disability retirement. He contends he now suffers from PTSD related to combat and was working toward medical retirement when he was discharged. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 4 April 2002. He served in Iraq from 20 January 2004 to 15 February 2005, and Afghanistan from 29 November 2008 to 27 November 2009); 2) A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment on 30 September 2010 for engaging in an inappropriate relationship with another service member’s wife; 3) On 28 March 2011, the Rear D Brigade 1SG was informed by the Rear D CSM, that the father of 16 year old had contacted him regarding a inappropriate text conversation between the applicant and his daughter. The applicant was also accused by the parent of another minor that he provided the minor alcohol then solicited her for nude photos and threatened to inform the parents of her alcohol consumption if she did comply; 4) The applicant was sent a letter from the County Attorney, dated 30 March 2011, advising him that the parents of the minor made a complaint that the applicant provided alcoholic beverages to their then fourteen year old daughter; 5) An Order Granting Bail for Domestic Abuse Cases from the General Sessions Court of County, , and accompanying Incident Report and Arrest Warrant, showed the applicant had been arrested for domestic violence against his girlfriend, on 23 August 2011; 6) On or about 27 November 2011, he was arrested in County for domestic assault; 7) A DA Form 3947 (Medical Evaluation Board Proceedings), dated 13 April 2012, shows after consideration of clinical records, laboratory findings, and physical examination, the Board finds the applicant has the following medical conditions/defects that were unfitting (Lumbar Degenerative Disk, PTSD, and MDD); 8) The MEB recommended the applicant be referred to the Physical Evaluation Review Board (PEB). The applicant agreed with the Board’s finding and recommendations on 30 April 2012; 9) A Developmental Counseling Form, dated 28 June 2012, shows the applicant received counseling for recommendation for separation due to his commission of a serious offenses. The applicant had been charged with multiple counts of assault having occurred on diverse occasions between 2010 and 2011, soliciting an inappropriate nude photo, and providing alcohol to a minor. The applicant request to appear before an Administrative Board; 10) On 28 November 2012, the Board carefully considered the evidence before it and found there was sufficient evidence to support a finding that the applicant should be separated for the Commission of a Serious Offense (AR 635-200, para. 14-12c). In light of the findings, the Board recommends the applicant, be discharged from the US Army. Further details are outlined in the ROP; 11) After reviewing the MEB and Administrative Board findings, the Commanding General directed the administrative separation proceedings continue. He found the applicant’s mental conditions and medical conditions were not the direct or substantially contributing cause of the applicant’s misconduct and there were no circumstances of the applicant’s case that warrant disability processing; 12) The applicant was discharged on 17 January 2013 under the provisions of AR 365-200, paragraph 14-12c for misconduct, serious offense. c. The military electronic medical record, AHLTA, VA electronic medical record, JLV, ROP, and casefiles were reviewed. A review of AHLTA showed the applicant’s first BH- related engagement, during active-service, occurred on 29 September 2005 at the Schofield Barracks, HI, 25 Division Mental Health Clinic, whereby the applicant reported concerns with his increased anger since returning home from Iraq. He noted increased arguments with his fiancée, fear for the safety of his son, increased worry, isolative behavior, hyperarousal, avoidance, and panic like symptoms. He denied traumatic experiences during deployment but endorsed flashback, that he didn’t find distressing, during the first 3 months of his return from deployment. The applicant was diagnosed with MDD, single episode and referred for outpatient treatment. Encounter note dated 6 October 2005 showed the applicant was seen for BH medication evaluation. The examiner noted the applicant’s symptoms to include anger, irritability, hyperarousal, flashbacks, panic episodes, isolation, insomnia, and depressed mood were consistent with a diagnosis of PTSD. The provider diagnosed the applicant with Chronic PTSD, prescribed psychotropic medications and referred the applicant for outpatient treatment via therapy and medication management. Records showed the applicant engaged in outpatient treatment at Schofield Barracks until PCS in January 2006. d. The applicant’s next BH engagement appears to have occurred on 29 March 2008 at Fort Campbell, KY. The applicant was seen for a safety-check after his wife (also a Soldier) reportedly called his command with concerns the applicant might be suicidal. The applicant denied suicidal ideation and declined BH service at that time. Encounter noted dated 18 June 2008 showed the applicant was referred to FAP subsequent allegation of verbal and emotional abuse. The applicant was scheduled for a full FAP assessment. Upon completion of the assessment the applicant was diagnosed with Partner Relational Problem, Parent/Child Problem, and Other Specified Family Circumstances. Session content was not included in the electronic encounter note. Records suggest the applicant engaged in FAP counseling through 2 July 2008, and again in June 2011. e. Records showed that between 29 March 2008 and 12 July 2012 that applicant engaged in outpatient treatment, intermittently, for PTSD, MDD, and Partner Relational Problems. The applicant was deployed to Afghanistan from November 2008 to November 2009 and records are void of any BH-related treatment for the applicant during that time. Encounter note dated 12 April 2012 showed the applicant’s provider determined he had met MRDP for MDD recurrent as he’d been in treatment since 2005 (therapy and medication management) without significant improvement. He was referred to the MEB. MEB Narrative Summary Dated 12 April 2012 Showed the Board determined the applicant had unfitting diagnoses of Lumbar Degenerative Disc Disease, PTSD, and MDD. JLV was void of any treatment history for the applicant and he does not have a service-connected disability. No hardcopy civilian BH records were provided for review. f. The applicant request, in effect, physical disability retirement. He contends he now suffers from PTSD related to combat and was working toward medical retirement when he was discharged. A review of the records showed, that while on active duty the applicant was diagnosed with PTSD and MDD and that it was determined by MEB that the conditions were unfitting and a recommendation was made to refer the case to PEB. Prior to PEB processing, an Administrative Board was convened to consider misconduct charges against the applicant. The Board found a preponderance of the evidence supported that the applicant engaged in multiple instances of assault, provide alcohol to and solicit a nude photograph from a minor under 16, communicate indecent language to minor under 16, and engage in an inappropriate relationship. After having reviewed the MEB and Administrative Board findings, the Commanding General Ordered the applicant to be administratively separated. Evidence showed the decision for separation was proper and equitable. Given the above and considering that none of the misconduct charged against the applicant is normal sequela of either PTSD or MDD, this advisor finds insufficient evidence to warrant a change in the applicant’s narrative reason for separation. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service, however, there is insufficient evidence the diagnosis mitigated his misconduct or warrants a change in his narrative reason for separation. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant was diagnosed with PTSD and MDD during and an MEB found the diagnoses unfitting. 2. Did the condition exist, or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant request, in effect, physical disability retirement. He contends he now suffers from PTSD related to combat and was working toward medical retirement when he was discharged. A review of the records showed, that while on active duty the applicant was diagnosed with PTSD and MDD and that it was determined by MEB that the conditions were unfitting and a recommendation was made to refer the case to PEB. Prior to PEB processing, an Administrative Board was convened to consider misconduct charges against the applicant. The Board found a preponderance of the evidence supported that the applicant engaged in multiple instances of assault, provide alcohol to and solicit a nude photograph from a minor under 16, communicate indecent language to minor under 16, and engage in an inappropriate relationship. After having reviewed the MEB and Administrative Board findings, the Commanding General Ordered the applicant to be administratively separated. Evidence showed the decision for separation was proper and equitable. Given the above and considering that none of the misconduct charged against the applicant is normal sequela of either PTSD or MDD, this advisor finds insufficient evidence to warrant a change in the applicant’s narrative reason for separation. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The Board noted after the review of MEB findings and administrative board findings, the Commanding General Ordered the applicant to be administratively separated. Evidence of record shows the decision for separation was proper and equitable. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advisory official finding none of the misconduct charged against the applicant is normal sequela of either PTSD or MDD, the applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a physical disability retirement was warranted during his period of active service. Therefore, the Board denied relief. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) set forth the basic authority for the separation of enlisted personnel. It provides: a. An honorable discharge was 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 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. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was or could be authorized for that same or relatively similar offense under the UCMJ. 3. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, USC, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 9. 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 UOTHC 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. 10. 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, on those conditions or experiences. 11. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011174 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1