MEMORANDUM OF CONSIDERATION


IN THE CASE OF:
        

BOARD DATE: 29 January 2002
DOCKET NUMBER: AR2001059305

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Gerald E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or t o deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his application to correct his records by upgrading his discharge, restoring his rank to staff sergeant (SSG), with back pay and allowances, expunging all references to the disciplinary actions that led to his discharge and affording him a physical disability separation or retirement.

APPLICANT STATES: In effect, that the discharge authority disregarded his medical and psychiatric conditions as mitigating factors in the conduct that led to his discharge under other than honorable conditions (UOTHC). He states that after filing an Inspector General (IG) inquiry he faced a hostile work environment and repercussions even after he was transferred out of the unit. He states that he was badly represented and coerced by his military counsel to take the administrative discharge.

COUNSEL CONTENDS: In effect, that the Army abused its discretionary authority by not processing the applicant for a medical release prior to the commission of the offenses that led to the applicant’s discharge. Counsel further contends that he has been hampered in his presentation of this case by the lack of response to requests for records from the National Personnel Records Center (NPRC) and the Department of Veterans Affairs (VA). The majority of counsel’s presentation is a reiteration of the significant aspects of applicant’s period of service and available medical records.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR1999033789) on 22 June 2000.

The applicant’s counsel submits a twenty-page brief with an appendix containing 49 exhibits. Included among the exhibits are copies of the applicant’s personal statement; a transcript of the applicant’s 3 November 1998 testimony before a VA hearing officer; three VA rating decisions; private, military and VA medical records; three of the applicant’s Noncommissioned Officer Evaluation Reports (NCOER); and copies of various administrative and legal documents pertaining to the applicant’s domestic problems and the actions leading to his discharge.

The applicant’s submissions are new evidence that require Board consideration.

The applicant’s medical records show that he was first seen in June 1994 for a medical condition that was diagnosed as sarcoidosis. He received treatment for this condition periodically throughout the remainder of his service. Treatment included being placed on light duty and/or physical profile on several occasions and the use of the corticosteroid prednisone. There are several references to the fact that the applicant was not taking his medication properly and therefore treatment was adversely impacted.
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.”

During this period 1994 to 1997, the applicant received very high NCOER evaluations from his raters. These reports indicated that, although the applicant was having some medical problems, he was performing his assigned duties in a very professional manner. Only on his last NCOER did he receive a negative evaluation and that only from his senior rater.

An 11 March 1998 VA rating decision found that the applicant’s service, for the period 28 January 1990 to 2 May 1997, was dishonorable for VA purposes. They rendered the opinion that the applicant was not “insane” (in accordance with their definition of the term, 38 Current Federal Regulation (CFR) 3.354) at the time he committed the offenses that led to his discharge. They, however, determined that he was entitled to health care and related benefits under other provisions of the law. This decision was reversed by the 5 May 1999 decision that rendered the opinion that the applicant was “insane” at the time he committed the offenses that led to his UOTHC and the applicant was granted service connection for sarcoidosis, hemorrhoids and an adjustment disorder with residual depression at a 50 percent disability evaluation level. This was increased to a total (100%) disability evaluation in November 1999. The diagnoses at the current time are psychosis, not otherwise specified (100%), history of sarcoidosis (0%) and status post hemorrhoidectomy (0%).

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).

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.

In the applicant’s personal statement he indicates that he was escorted to Ft. Knox in “handcuffs and leg irons” and placed in confinement until he was able to speak with his counsel. His counsel advised him of his options, which included requesting a chapter 10 administrative discharge. He states that he “was fearful of the outcome of the actions pending against me and wanted my release at any expense.” He states that he later changed his mind and requested that the chapter 10 be withdrawn. There is no evidence of this request.

His Certificate of Release or Discharge from Active Duty, DD Form 214, indicates that he was discharged at Ft. Knox, Kentucky, on 2 May 1997, for the good of the service under the provisions of Army Regulation 635-200, chapter 10, with a characterization of service as under other than honorable conditions. He was administratively reduced to pay grade E-1 in accordance with governing regulations.

Internet medical dictionary, WebMD, defines sarcoidosis as a granulomatous disease in which inflammation occurs in lymph nodes, lungs, liver, eyes, skin and other tissues. The cause of the disease is unknown. Possible causes include a hypersensitivity response, a genetic predisposition, or chemicals. The onset of the disease usually occurs in people between 30 and 50 years old. Symptoms include general discomfort, uneasiness, or ill feeling (malaise), fever, shortness of breath, cough, skin lesions, skin rash, headache, visual changes, neurological changes, enlarged lymph glands (armpit lump), enlarged liver, enlarged spleen, dry mouth, fatigue and weight loss . Additional symptoms that may be associated with this disease are decreased tearing, seizures, nosebleeds, joint stiffness, hair loss, burning, itching and discharge from the eyes, and rales or other abnormal breath sounds.

The treatment regimen for sarcoidosis often includes the use of corticosteroids. Therapy may continue for 1 or 2 years, although some affected may require lifelong therapy. The majority of people are not seriously ill and the disease may resolve without treatment. About 20% of those with lung involvement will develop residual lung damage. Death from respiratory insufficiency occurs in about 5% of patients. Complications include diffuse interstitial pulmonary fibrosis, pulmonary hypertension, anterior uveitis, glaucoma and blindness (rare), cardiac arrhythmias and cranial or peripheral nerve palsies.

The WebMD lists prednisone as a corticosteroid. It is used to reduce swelling but also decreases the body's ability to fight infections. It is used to treat many different conditions such as endocrine (hormonal) disorders, arthritis, lupus, severe psoriasis, severe asthma, ulcerative colitis, sarcoidosis and Crohn's disease. Side effects include allergic reactions (difficulty breathing; closing of the throat; swelling of the lips, tongue, or face; or hives); increased blood pressure (severe headache or blurred vision); or sudden weight gain (more than 5 pounds in a day or two). Other less serious side effects that may be more likely to occur include insomnia; nausea, vomiting, or stomach upset; fatigue or dizziness; muscle weakness or joint pain; problems with diabetes control and/or increased hunger or thirst. Other side effects that occur only rarely, usually with high doses of prednisone, include acne, increased hair growth, thinning of the skin, cataracts, glaucoma, osteoporosis, roundness of the face, and changes in behavior. A warning on all dose levels is to not stop taking prednisone suddenly if you have been taking it for a few weeks. A gradual reduction in dosage may be needed before a patient stops taking this medication.

Army Regulation 635-40, paragraph 3-2a(5)b(1), provides that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 40-501, paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.

Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40, paragraph 4-1, provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

The Manual for Courts-Martial, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

Title 38, United States Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, chapter 1, provides that when a soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.

If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

2. The discharge authority has no “discretion” in the processing of an individual for a medical separation when the individual has charges pending before a court-martial. Regulations require that any favorable action, including a consideration for physical disability separation or retirement, be placed on hold until the completion of the court-martial actions.

3. The Board does not doubt that the applicant was and is suffering from a medical condition that could have impacted on his ability to serve. However, his NCOER shows that 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.

4. Further, in the absence of evidence that at the time of the discharge the applicant was so impaired by mental, emotional, psychological or psychiatric problems that he could not both tell right from wrong and adhere to the right the contention of diminished capacity does not demonstrate an error or an injustice in the discharge.

5. The applicant's voluntary request for separation, under chapter 10, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress or that he withdrew his request.

6. As the applicant’s discharge is deemed to have been proper and the characterization of his service appropriate, there is no justification to purge the disciplinary actions or to restore his rank.

7. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__AAO__ __MHM__ ___KAH _ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001059305
SUFFIX
RECON
DATE BOARDED	20020129
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.