IN THE CASE OF: BOARD DATE: 29 July 2010 DOCKET NUMBER: AR20100016057 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, through a court remand, reconsideration of his earlier request for correction of his records to show he was discharged by reason of physical disability. 2. The applicant states, in effect, he should have been medically retired or separated by reason of physical disability. 3. The applicant submits two binders as follows: * Volume I, Administrative Record (Official Military Personnel File (OMPF)), contains 27 Tabs * Volume II, Administrative Record (Medical, Dental, and Immunization), contains 28 Tabs CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2004105859 on 19 January 2005. He then requested reconsideration by the ABCMR on 21 January 2009; however, his request for reconsideration was administratively closed due to a lack of substantiating evidence. 2. This reconsideration is not relying on the statute of limitations as a basis for the Board's decision, but strictly on the evidence considered in this case as stipulated in the Court's administrative record. 3. On 6 May 2010, subsequent to the applicant's petition to the U.S. Court of Federal Claims and the Court's denial of the Government's Motion to Dismiss, the Government moved to stay the current proceedings in this case and sought an order to remand this matter to the ABCMR for further action based on the applicant's entire military medical record. Accordingly, on 13 May 2010, the U.S. Court of Federal Claims ordered the Government's motion to remand be granted and the case be returned to the ABCMR for further consideration. 4. The applicant's records show he enlisted in the New York Army National Guard (NYARNG) on 20 September 1984 and served in military occupational specialty (MOS) 11B (Infantryman). He was honorably discharged on 26 October 1986 to enlist in the Regular Army (RA). 5. A report of medical examination, dated 27 October 1986, shows he was fully qualified for enlistment. He ultimately enlisted in the RA for a period of 3 years on 20 November 1986 and subsequently served through multiple reenlistments in the RA in MOS 88M (Motor Transport Operator). 6. On 3 May 1989, while at Fort Lewis, WA, he injured his palm and left knee during physical fitness training when he slipped and tripped. At the completion of training, the injury did not bother him and he elected not to seek medical attention. However, his condition later worsened and he ultimately received treatment for this injury at Madigan Army Medical Center, Fort Lewis. 7. He attained the rank/grade of sergeant (SGT)/E-5 on 1 June 1990 and promotion list standing for the rank/grade of staff sergeant (SSG)/E-6 in August 1995. 8. On 28 February 1997, the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) reported the applicant and a subordinate were cheating on College Level Examination Program (CLEP) and Defense Activity for Non-Traditional Education Services (DANTES) tests at the Education Center, Fort Eustis. 9. As a result of the information that was available at the time, testing at Fort Eustis was suspended until it could be determined whether the tests had been compromised. The CID investigation concluded on 9 May 1997 that there was probable cause to believe the applicant and his subordinate committed the offenses of fraud and conspiracy by sharing test answers with each other. 10. On 27 May 1997, an investigating officer (IO) was appointed to conduct an investigation under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) regarding allegations of sexual harassment against the applicant. 11. On 8 July 1997, subsequent to interviewing witnesses and collecting sworn statements, the IO found the applicant made unwanted sexual comments by explaining his sexual activity, describing his anatomy, and explaining what was expected of female Soldiers during deployments. The IO concluded the allegations were substantiated and recommended that the applicant either be discharged or that nonjudicial punishment be imposed against him. 12. On 30 September 1997, the applicant's immediate commander notified him that he was initiating action to separate him from the service under the provisions of chapter 14-12(c) of Army Regulation 635-200 for misconduct – commission of serious offenses. The commander cited the offenses of sexual harassment of Soldiers whom the applicant supervised which constituted cruelty and maltreatment of subordinates and the applicant's conspiracy with another Soldier to cheat on official DANTES and CLEP exams. The commander recommended that the applicant be issued an under other than honorable conditions (UOTHC) discharge. 13. On 30 September 1997, the applicant acknowledged receipt of the separation notification memorandum and he was subsequently advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected consideration of his case by and personal appearance before an administrative separation board. He also elected representation by military counsel. 14. The applicant further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a UOTHC discharge. 15. The record shows that the applicant had been followed in the Neurology clinic at Naval Medical Center, Portsmouth in 1996-97 for headaches and intermittent episodes of vertigo. There are conflicting documents in the record regarding the applicant's profile the last half of 1997. a. One document is a temporary profile from 16 June 1997 to 16 December 1997. The other is a permanent profile dated "31" June 1997 (both documents are dated "31" June but one of them is corrected to read 30 June). Both profiles are for migraine headache. b. The "permanent" profile does not contain the patient’s name and has no numerical assignment in the PULHES. It is also not cosigned by a second physician. It contains the note "permanent profile, pending findings of medical board." c. There is nothing about a board in the next 6 months but clinic notes indicate that he was tried on a variety of medications and by December 1997 his condition was characterized as "stable with adequate control of migraine sx’s (symptoms), some residual vertigo." 16. On 3 March 1998, an administrative separation board convened at Fort Eustis to consider whether the applicant should be discharged under the provisions of chapter 14-12, Army Regulation 635-200, for commission of a serious offense. The applicant appeared with counsel. The separation board found the applicant did not commit a serious offense within the meaning of Army Regulation 635-200 by sexually harassing several Soldiers over whom he had supervisory responsibility; however, he did commit a serious offense within the meaning of the same regulation by conspiring with another Soldier to cheat on official CLEP and DANTES exams. The separation board recommended that the applicant be discharged from the Army with a general discharge under honorable conditions. 17. On 13 March 1998, the applicant had a physical examination at Ft Eustis. The stated reason for the exam was “medical board.” There is no indication in his medical records that he was referred for a medical evaluation board. There is no indication the applicant was on a profile at that time (migraines were controlled in December 1997). This exam apparently served as the applicant’s separation physical. The only current diagnoses listed on the physical exam were "migraine headache" and “arterial HTN (hypertension) under control." There is no statement regarding the severity of the migraine headaches. A temporary profile of 311111 was assigned. There is no reference to post-traumatic stress disorder (PTSD) during this physical examination or at any time throughout his military record. Additionally, there is no evidence that the applicant was unfit for separation. 18. On an unknown date, subsequent to the separation board meeting, the applicant's senior commander recommended that the applicant be discharged from the Army with a UOTHC discharge because the applicant had no potential for useful service under conditions of full mobilization and he would prove to be a detriment to any unit. 19. On 1 April 1998, the convening authority approved the findings and recommendations of the administrative separation board and ordered the applicant be issued a general discharge under honorable conditions. 20. Accordingly, on 4 June 1998, the applicant was discharged under the provisions of paragraph 14-12(c) of Army Regulation 635-200, due to misconduct with a general discharge. He had completed 13 years, 7 months, and 22 days of creditable active service. 21. The next medical assessment available is the Department of Veterans Affairs (VA) rating decision of 28 March 2002. The medical record is incomplete and the VA decision which was relevant to the time when the applicant was separated is not included. Although the original VA rating is not available for review with this case, it can be reconstructed from the 2002 decision: a. The 28 March 2002 decision indicates that PTSD is granted service connection and rated at 70%, retroactive to 20 October 1998. The initial 10% rating for migraine headaches was increased to 30% effective 15 January 1999. The initial rating of 10% for hypertension was continued at 10%. b. Apparently, his first VA rating was 10% for migraine headaches and 10% for hypertension. 22. His records show he completed the following training courses in the years prior to his discharge: * Nuclear, Biological, and Chemical Course, from 28 February to 11 March 1994 * 40-Ton RT875CC Grove Crane Training, from 8 to 19 September to 1997 * Bus Driver Training, 100 hours, from 17 June to 3 July 1996 * Air Deployment Planning Course, from 3 weeks, 2 to 20 February 1998 23. His records show he was awarded the following medals in the years prior to his discharge: * Army Achievement Medal for outstanding performance from 16 to 26 May 1994 * Army Commendation Medal for meritorious achievement as a bus driver from 24 June to 29 August 1996 24. His records show he received the following Noncommissioned Officer (NCO) Evaluation Reports after he was promoted to SGT/E-5 on 1 June 1990: * Annual, June 1990-May 1991, Pass Army Physical Fitness Test (APFT); Met Height/Weight Standards; received fully capable performance rating, successful overall performance and superior potential * Annual, June 1991-May 1992; Pass APFT; Met Height/Weight Standards; received fully capable performance rating, successful overall performance and superior potential * Annual, June 1992-May 1993, Pass APFT; Met Height/Weight Standards; received fully capable performance rating, successful overall performance and superior potential * Annual, June 1993-May 1994, Pass APFT; Met Height/Weight Standards; received among the best performance rating, successful overall performance and superior potential * Annual, June 1994-May 1995, Pass APFT; Met Height/Weight Standards; received fully capable performance rating, successful overall performance and superior potential * Change of Rater, June 1995-February 1996, Pass APFT (exceeded standards); Met Height/Weight Standards; received fully capable performance rating, successful overall performance and superior potential * Annual, March 1996-February 1997, Pass APFT; Met Height/Weight Standards; received fully capable performance rating, successful overall performance and superior potential * Annual, March 1997-February 1998, Not rendered 25. A review of his medical records shows he made several routine visits to the local clinic and/or hospital throughout his military service for various ailments including dizziness and chest pain, diarrhea, flu, stomach ache, runny nose, lightheadedness. Additionally, the medical records contain the following documents: a. A radiology consult, dated 6 November 1992, noted the presence of an active duodenal bulb ulcer and a follow-up consult, dated 25 January and 3 February 1992, noting the absence of an active ulcer disease. b. A report of medical examination, dated 6 October 1993, shows he was in good physical condition and fully qualified for drill sergeant school. c. A radiology report, dated 14 September 1994, noting normal bone structure. d. A copy of a DA Form 3349 (Physical Profile), dated 31 June 1997, wherein the profiling officer noted a temporary condition of recurrent vertigo and headaches. e. A record that shows he had been seen at the Neurology Clinic, Naval Medical Center, Portsmouth, VA in the October 1997 time-frame for headaches and intermittent episodes of vertigo and it appears to refer him to the Army for a determination of fitness for duty. f. A report of medical examination, dated 13 March 1998, shows he had migraine headaches with a temporary physical profile in the "P" factor of his PULHES. The attending physician indicated he was qualified for an MEB. g. A memorandum, dated 13 April 1998, noting he failed to show up for a dental appointment. 26. On 7 July 2000, he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He contended his discharge was harsh and unjust. His overall record of service was taken into consideration as well as his service in Southwest Asia in support of Operation Desert Shield/Storm. 27. On 18 September 2000, subsequent to a personal appearance hearing with counsel, the ADRB found his faithful and honorable service outweighed the discrediting entries in his records and determined his discharge was inequitable. The grant of relief was not based on the propriety of the discharge. Accordingly, the ADRB voted to grant relief in the form of a re-characterization of his service to fully honorable and a change to the narrative reason for discharge to Secretarial Authority. He was later issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting the directed changes. 28. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate. 29. Paragraph 1-35 of Army Regulation 635-200 states when the examining medical officer decides that a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial authority (GCMCA) over the member concerned. The commander exercising general court-martial authority will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined the disability is the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing. 30. Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 31. Army Regulation 635-40, paragraph 4-3, states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of UOTHC. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. A case file could be referred to a PEB if the GCMCA finds the disability is the cause, or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation. 32. Army Regulation 40-501 (Standards of Medical Fitness) states a cause for referral to an MEB is diastolic pressure consistently more than 110 mmHg following an adequate period of therapy in an ambulatory status, or any documented history of hypertension, regardless of the pressure values, if associated with one of more of the following: * More than minimal changes n the brain * Heart disease * Kidney involvement, with moderate impairment of renal functions * Grade III (Keith-Wagner-Barker) changes in the fundi 33. Army Regulation 40-501 also states that migraines, when manifested by frequent incapacitating attacks, is a cause for referral to an MEB. 34. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 35. Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures under References (a) and (b) for retiring or separating Service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve. 36. Section E3.P3.4 of DODI 1332.38 states that determining whether a member can reasonably perform his or her duties includes consideration of: a. Common Military Tasks: Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear. b. Physical Fitness Test: Whether the member is medically prohibited from taking the respective Service's required physical fitness test. c. Deployability: When a member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the Continental United States. d. Special Qualifications: For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment; or the member has an alternate branch or specialty; or whether reclassification or reassignment is feasible. 37. Title 38, U.S. Code, 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 higher VA rating does not establish error or injustice in the Army rating. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA may award a rating even though the Army never found the individual to be unfit for retention. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant committed a serious offense in that he cheated on his exams. His chain of command initiated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct. He and his counsel appeared before an administrative separation board that subsequently recommended him for discharge. The convening authority approved the findings and recommendations and he was ultimately issued a general discharge. 2. He petitioned the ADRB for an upgrade of his discharge and the ADRB determined his discharge was proper but inequitable and directed the re-characterization of his discharge to fully honorable and the narrative reason for separation to be changed to "Secretarial Authority." 3. There is no evidence in his records that shows he was physically unfit at the time of his discharge. A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. 4. In the applicant's case, his multiple reenlistments, completion of various training courses, and NCO Evaluation Reports clearly show he passed all of his APFT's since 1990, met the height and weight standards, was rated successful or among the best with superior potential, and he was fully able to perform the duties of his grade and/or MOS. 5. The available record shows that the applicant had been followed in the Neurology clinic at Naval Medical Center Portsmouth in 1996 - 1997 for headaches and intermittent episodes of vertigo. There are conflicting documents in the record regarding the applicant's profile the last half of 1997. One document is a temporary profile from 16 June 1997 to 16 December 1997. The other is a permanent profile dated "31" June 1997. Both profiles are for migraine headache, but the "permanent" profile does not contain the patient's name and has no numerical assignment in the PULHES. It is also not cosigned by a second physician. It contains the note "permanent profile pending findings of medical board," but there is nothing about a board in the next six months but clinic notes indicate that he was tried on a variety of medications and by December 1997 his condition was characterized as stable with adequate control of migraine symptoms with some residual vertigo. 6. The available medical records were provided by the applicant. They do not appear to be complete. However, the available records show that after preparing a temporary profile, a Navy neurologist either decided to refer the applicant for a medical board or he was led to believe that the Army was planning a medical board. This apparent referral by the Navy Medical Board for a fitness for duty review by the Army was overcome by events in that the available medical records document medical control of the applicant's migraines by December of 1997. With control of his migraines, he was no longer unfit by reason of migraines. There is no medical evidence available to show he was ever placed on a profile for his hypertension, and thus no evidence to show he was unfit to perform his duties because of untreatable hypertension. 7. Although the applicant had a physical exam on 13 March 1998 that indicated the purpose was for a medical board, there is no evidence in the available records that he was referred for an MEB. There is no indication that he was even on a profile at that time (his migraine were controlled in December 1997. The only current diagnoses listed on the physical exam were "migraine headache" and "arterial HTN (hypertension) under control." It appears this exam was used as his separation physical. 8. Further, the reason for his separation (misconduct) was not related to any medical conditions (vertigo and headaches) he had been diagnosed with and there were no other compelling reasons for the GCMCA to proceed with PDES processing or a PEB. 9. The Navy's medical board examination recommended an Army fitness for duty review. However, this occurred after the applicant's chain of command initiated separation action against him and a review was therefore not required by Army Regulation 635-40. In the absence of evidence to the contrary, it is presumed that the GCMCA was aware of the requirements of Army Regulation 635-200 and acted accordingly. But even if the GCMCA failed to make a determination regarding the applicant's PDES processing, this error would have been harmless because: * The nature of the applicant's misconduct (cheating and conspiracy) had no relation to the medical conditions (vertigo and headaches) listed on the Navy's examination * He presented no compelling evidence that other circumstances warranted disability processing over administrative separation * Nothing in his records supported, back then, a claim for PTSD, which is the primary reason he now seeks medical retirement 10. The applicant also believes he should receive a medical discharge or retirement because the VA granted him service-connected disability compensation for PTSD, migraines, and hypertension. However, an award of a rating by another agency does not establish error by the Army. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service connected) and for conditions that affects the individual's civilian employability. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and is based on conditions that render the Soldier unfit to perform his duties. 11. Apparently, his first VA rating was 10% for migraine headaches and 10% for hypertension. This correlates with his separation physical exam of March 1998. There is nothing in the VA decision that would indicate that the applicant was "unfit" (should have had an MEB/PEB) at the time of his separation. 11. There is no indication in the medical records that the applicant fell below retention standards once his migraines were controlled by medication. The Navy references to a board or fitness for duty evaluation for migraines were prior to the December 1997 note that indicated his migraines were stable and controlled by medication. 12. The applicant has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant did not submit sufficient evidence that would satisfy this requirement. In view of the circumstances in this case there is insufficient evidence to grant the requested relief. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2004105859, dated 19 January 2005. _______ _ _XXX____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100016057 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016057 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1