RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050005136


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, in effect, defers to her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be reinstated to active duty in the
District of Columbia (D.C.) Army National Guard (ARNG) Active Guard/Reserve
(AGR) and authorized back pay and allowances and other appropriate relief.


2.  Counsel states that the applicant was medically/physically non-
deployable at the time.  D.C. ARNG State Surgeon improperly influenced her
treating surgeon. Her doctor was reportedly outraged that he had been
pressured into declaring her deployable.  She was ordered to the Deployment
Center even though she had a non-deployable physical profile.  The D.C.
ARNG investigation conducted under the provisions of Army Regulation (AR)
15-6 was flawed as demonstrated by the fact that the legal reviewer
concluded that it failed to establish that the applicant, "had improperly
created, altered or destroyed any records, presumably including her medical
records.  This conclusion is consistent with [the applicant's] belief that
her command lost her records."  Counsel also contends that the applicant's
record including her awards and evaluations establishes a record of honesty
and service that proves that she would not have committed the alleged
behavior.  Counsel concludes, "There is no question that [the applicant]
was temporarily non-deployable prior to her June 2003 trip to the
Mobilization Center, there is no question that she was temporarily non-
deployable after her June 2003 trip to the Mobilization center, and there
is no doubt that both of these temporary non-deployable profiles were
caused by complications of her breast reduction surgery.  Thus, both before
and after she was found to be malingering by allegedly faking her non-
deployability [the applicant] was in fact non-deployable for exactly the
reason that she told her command."

3.  Counsel provides copies of numerous service record documents, including
awards citations, evaluations, medical records, unsworn character
references, and the AR 15-6 investigation.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career Reserve Component noncommissioned officer (NCO)
was on full time active duty with the D.C. ARNG in the AGR program as a
sergeant first class.

2.  She had a history of back problems dating back to 1993 and to help with
her back problems she underwent breast reduction surgery on 26 November
2002.  On 6 April 2003, during pre-deployment screening during Soldier
Readiness Processing (SRP), the initial interviewer [an Army Nurse Corps
major] determined that the applicant was still under a doctor's care and
that further evaluation was required to properly evaluate her status.  A
temporary (T3) physical profile issued by Dr. A____ F____, lieutenant
colonel, Medical Corps on 30 April 2003 precluded "strenuous field
training" until 30 June 2003.

3.  In trying to determine the applicant's medical status–and apparently
because of some perceived irregularity involving prescriptions–the Deputy
State Surgeon and the State Surgeon interviewed the applicant on 2 June
2003 in the presence of officers from the D.C. Inspector General's office
and the Staff Judge Advocate's office.  The State Surgeon contacted Dr.
F____ at Walter Reed Army Medical Center.  According to the State Surgeon,
Dr. F ____ confirmed that the applicant would be deployable after 30 June
2003.

4.  When the applicant reported to the Mobilization Center at Fort Eustis,
Virginia she was found not deployable because the medical documents
contained in her medical record supported only the conclusion that she was
non-deployable.  There was a profile dated 30 June 2003 that reported her
non-deployable until 1 October 2003.  The existence of this profile had not
been reported to the D.C. ARNG medical command and it was not in her record
when she returned to the Guard.

5.  The State Surgeon consulted with the physician at the Deployment Center
and learned about the existence of the 30 June 2003 profile and that other
documents seemed to be missing when she reported to the Deployment Center.
After determining that the applicant had been in possession of her own
medical records and being unable to identify the physician who had signed
the profile, the State Surgeon requested a formal AR 15-6 investigation.
An investigating officer (IO) was appointed by the D.C. ARNG Deputy
Commanding General.

6.  The IO visited WRAMC, where the 30 June 2003 profile supposedly came
from, but the staff was unable to identify the Medical Corps colonel who
issued it. Also, records of appointments failed to show that the applicant
had been scheduled for an appointment on 30 June 2003.  She was not taking
any medications that would indicate she had an infection or was in unusual
pain.  The head of the pharmacy indicated that none of the applicant's
medications made her non-deployable.  Upon reviewing her medical records,
the chief of plastic surgery indicated the profile that expired in June
2003 was based on the patient's complaint of being injured in the
field/rifle range (not because of the surgery).

7.  The IO interviewed the applicant on 18 February 2004.  After the IO
explained the purpose of the meeting the applicant indicated that she
wanted a lawyer.

8.  On 25 February 2004, the IO interviewed the applicant with her lawyer,
Captain F____, present.  The applicant denied ever having possession of her
medical records and declined to provide a release for her medical records.
She indicated that the 30 June 2003 profile had come from WRAMC, but she
could not read and did not know the physician's name.

9.  The IO concluded, in effect, that the applicant 's actions constituted
violations of the Uniform Code of Military Justice, Article 115
(malingering), Article 123 (forgery ), Article 131 (perjury) and Article
132 (fraud).  She recommended administrative rather than legal action.  A
legal review found the investigation sufficient as to the offenses of
malingering and conduct unbecoming a NCO, but insufficient as to forgery
and altering a public record.

11.  The applicant was notified of and acknowledged intended administrative
separation from the AGR.  The D.C. ARNG Commanding General approved the
separation and on 20 October 2004 the applicant was released from active
duty in the AGR program but remained assigned to the same D.C. ARNG unit.

12.  During the processing of this case an advisory opinion was obtained
from the National Guard Bureau (NGB).  The Chief, Personnel Division noted
that the review of the case was done in conjunction with the Office of the
Chief Surgeon and the Office of the Chief Counsel (NGB-JA).  [The Chief,
Personnel Division indicates that the NGB-JA opinion was attached, but it
was not.]  The Chief reported that both the Chief Counsel and the Chief
Surgeon concur that the removal from the AGR program was justified and
recommended that her requests be denied.  The Office of the Chief Counsel
noted the applicant's assertion in the application that she went to WRAMC
without an appointment and asked to see her doctor.  After waiting for a
long time the receptionist took the old profile and about 45 minutes later
she handed the applicant the one that expired 1 October 2003.  The validity
of this profile is highly suspect.  Finally, the ABCMR's lack of authority
to compel a state National Guard to take corrective action was noted, but
consideration of the case was recommended because the various state
military departments often voluntarily adopt ABCMR recommendations and
other appropriate relief might be available.  The advisory opinion was
provided to the applicant and her counsel.  No response has been received.

 13.  Subsequently, the advisory opinion was returned to the NGB for the
omitted attachment to be added.  However, the Chief, Personnel Division
indicated that the Chief Surgeon’s and the Office of the Chief Counsel’s
responses were considered internal working documents and their attachment
had not been intended.  The four previously listed enclosures were removed
from the newer version of basically unchanged advisory.

14.  The newer version was forwarded to the applicant and her counsel along
with an explanation concerning the removed enclosures.  No response has
been received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel have provided no substantiating evidence
and their arguments are unconvincing.  In the face of evidence that the
applicant presented the Mobilization Center with a new, unknown profile and
that this same profile was missing upon her return to the D.C. ARNG, her
claim that she never had her medical records simply prompts even more
questions.  Additionally, although the applicant may have had valid
temporary profiles before and after the suspect profile, that is not
conclusive evidence she was non-deployable based on a valid profile during
the intervening period.  Additionally, the profile that expired in June
2003 was not based upon the surgery as she has asserted.

2.  Furthermore, the story about reporting to WRAMC without an appointment
seems only to have surfaced after it was established that there was no
record of her having an appointment.

3.  The foregoing are in consonance with the advisory opinion from the NGB.

4.  In the absence of evidence to the contrary, it is presumed that the
separation proceedings were conducted in accordance with law and
regulations applicable at the time. The character of the discharge is
commensurate with her overall record.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant and her
counsel have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEV___  __BJE __  __DLL __  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 for correction of the
records of the individual concerned.





                                  __        James E. Vick_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050005136                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . . .                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]