IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009 

		DOCKET NUMBER:  AR20090002009 


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, in effect, a medical discharge.    

2.  The applicant states, in effect, that an administrative separation board recommended that she be separated from the service with a discharge under other than honorable conditions for misconduct (pattern of misconduct); however, the separation authority erroneously approved a discharge under other than honorable conditions for misconduct (commission of a serious offense).  She petitioned the Army Discharge Review Board (ADRB) and her discharge under other than honorable conditions was upgraded to a general discharge and the narrative reason for separation was corrected to show misconduct (pattern of misconduct).  She contends that without convening another administrative separation board she cannot be discharged for misconduct (pattern of misconduct).  She also contends that prior to her discharge she was recommended for a medical profile and separation by a Medical Evaluation Board (MEB).     

3.  The applicant also states that she has medical documentation which shows she has reactive airway disease and that she cannot be exposed to airway irritants and that she had a traumatic brain injury.  She goes on to state that although a commander has the military authority to disregard a medical profile, her commander stated no military reason for breaking her medical profiles and recommendations to return her to the United States for advanced medical care.

4.  The applicant provides service medical records; a DD Form 214 (Certificate of Release or Discharge from Active Duty); excerpts from her administrative separation board; a letter, dated 18 June 2008, from the Office of the Judge Advocate General; an undated letter from the Social Security Administration; a copy of her ADRB proceedings; and a letter, dated 2 April 2009, in support of her application.   

CONSIDERATION OF EVIDENCE:

1.  Having completed 16 years, 6 months, and 13 days of inactive service in the Air Force Reserve, the Army National Guard, the U.S. Naval Reserve, the applicant was ordered to active duty from the U. S. Army Reserve on 8 October 2006 in support of Operation Enduring Freedom.  

2.  The applicant provided service medical records which show she was treated for an allergic reaction to pepper spray in November 2006 and was diagnosed with bronchitis and reactive airway disease.  She was treated with medication.

3.  The applicant arrived in Afghanistan on 8 January 2007.  

4.  On 5 April 2007, the applicant was issued a temporary profile for bilateral hip, ankle, and wrist pain.  The applicant provided service personnel records which show she was treated for an allergic reaction to pepper spray on 18 April 2007.  

5.  The applicant provided a service medical record, dated 31 May 2007, which shows she was evacuated from Afghanistan to Landstuhl Regional Medical Center for shortness of breath and chest pain.  This record also states that the applicant had negative cardiac markers and a normal electrocardiogram, she also had a chest x-ray which was normal, and she had a treadmill stress test which, by report, was electrically equivocal.  On an unknown date, she was transferred back to Afghanistan.    

6.  The applicant provided a service medical record, dated 5 June 2007, which states, in pertinent part, that the applicant was evaluated for "episode of LOC [loss of consciousness] w/prolonged confusion afterwards, also w/TBI [traumatic brain injury] from the fall of that episode and postconcussive syndrome."  She applicant provided a service medical record, dated 7 June 2007, which states, in pertinent part, that on 7 April 2007, the applicant suffered an episode of loss of consciousness, that the event was preceded by a 24-hour period of fasting and phlebotomy.  She was walking away after having her blood drawn for multiple laboratory tests when she lost consciousness.  The duration of unconsciousness is not known.  She hit her head when she fell to the ground.  She was nauseated and complained of back pain upon recovery of consciousness and was treated with anti-emetics, and opioid analgesics.  The record states that a Magnetic Resonance Imaging (MRI) of the brain with and without gadolinium done on the 4th and 5th of June 2007 revealed presence of diffusely scattered punctuate non-enhancing areas of abnormal signal on GRE sequences throughout white matter of both hemispheres.    

7.  On 28 June 2007, the applicant was issued a profile for thyroiditis, GERD [gastroesophageal reflux disorder/disease], "DOE," and headaches.  The DA Form 3349 (Physical Profile) indicates that the applicant had a temporary physical profile of 322212.  This form also indicates that the profile is permanent and the entry "Needs MEB/PEB [Physical Evaluation Board]" is circled.

8.  On 30 September 2007, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct) for several occasions of disrespect towards superior commissioned and noncommissioned officers and a lack of military bearing and disregard for Army customs and courtesies, inability to comply with Army standards, and failure to conduct herself according to the minimum standard required by members of the Army.    

9.  On 3 October 2007, the applicant underwent a separation physical examination and her physical profile was 111211.  She was diagnosed with hypothyroidism; chronic migraines; tenosynovitis, bilateral hands/wrists; high frequency hearing loss, left ear; acute urethritis/cystitits; and post menopausal.

10.  On 4 October 2007, the applicant underwent a mental status evaluation and it was determined that there was no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels. 

11.  On 4 October 2007, the applicant consulted with counsel and requested consideration of her case by an administrative  separation board.  On 
15 November 2007, the administrative separation board convened and found that the applicant did commit patterns of misconduct and recommended that she be discharged under other than honorable conditions.  On 19 November 2007, the separation authority approved the findings and recommendation of the administrative separation board and directed that the applicant be discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense) . 

12.  The applicant was transferred back to the United States on 1 December 2007.  

13.  The applicant provided a service medical record, dated 5 December 2007, which shows she was diagnosed with shortness of breath.  The physician noted significant bronchodilator response per "ATS" criteria (increase in 12 percent and 200cc) and stated that this finding is consistent with the diagnosis of asthma in the proper clinical setting.

14.  On 13 December 2007, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense).  She had completed a total of 1 year, 9 months, and 26 days of creditable active service during the period under review.

15.  On 22 December 2008, the Army Discharge Review Board upgraded the applicant's discharge to a general discharge and corrected her DD Form 214 to show she was separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct).  

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

18.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she cannot be discharged for misconduct without convening another administrative separation board was noted.  However, since an administrative separation board found that the applicant did commit patterns of misconduct, there is no basis for granting the applicant's request for another administrative separation board.        

2.  The applicant's contentions that prior to her discharge she was recommended by a medical profile for separation by a MEB, that she has medical documentation which shows she has reactive airway disease and that she cannot be exposed to airway irritants, and that she had a traumatic brain injury were noted.  However, medical evidence of record shows that on 3 October 2007 the applicant underwent a separation physical examination and her physical profile was 111211.    

3.  There is no evidence of record to show the applicant was ever medically unfit to perform her duties.  Therefore, there is no basis for granting a medical discharge. 

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 for correction of the records of the individual concerned.




      _______ _   X_______   ___
               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)                                         AR20090002009





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ABCMR Record of Proceedings (cont)                                         AR20090002009



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