IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090020462 


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 an upgrade of her general, under honorable conditions discharge to a fully honorable discharge and reconsideration of her earlier request for correction of the narrative reason for separation from misconduct to disability.

2.  The applicant states her unit violated her medical profile by exposing her to an airway irritant (pepper spray) and deployed her to Afghanistan to work daily around pepper spray.  She was denied a transfer to a non-pepper spray area after severe reactions.  Her unit also violated her permanent medical profile and refused doctors requests to return her to the United States for advanced medical care which resulted in permanent disability upon her return.  Her disability is dated September 2007.  She adds that in the original Record of Proceedings, the Board only considered her heart and lungs were still in good condition in June 2007 but failed to consider documented evidence of Traumatic Brain Injury (TBI) with disabling migraines; reactive airway disease with documented severe reactions to pepper spray; and severe airway problems resulting from continued violation of pepper spray medical profile, including a later diagnosis of irritant induced asthma, fibromyalgia, and other debilitating medical conditions that could have been avoided if her medical profiles were not violated and if unit had allowed a medical board to return her to the United States for advanced care.

3.  The applicant provides a 9-page memorandum in legal brief format together with a voluminous 6-page listing of exhibits (Exhibit A through KK).  She had previously submitted several of the exhibits enclosed with her current request.

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 AR20090002009 on 23 July 2009.

2.  The applicant submitted a 9-page legal brief along with a 6-page listing of exhibits (Exhibit A through KK), some of which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  Having had prior service in the U.S. Air Force and the Army National Guard, the applicant's records show she enlisted in the U.S. Army Reserve (USAR) in the rank/grade of private first class (PFC)/E-3 on 30 November 2004.

4.  On 4 November 2005, she entered active duty for training (ADT), completed advanced individual training, and was awarded military occupational specialty (MOS) 91W (renamed 68W) (Health Care Specialist).  She was released from ADT on 20 March 2006 to the control of her USAR unit.

5.  On 8 October 2006, she was ordered to active duty in support of Operation Enduring Freedom and arrived in Afghanistan on 8 January 2007.

6.  On 13 January 2007, she received an administrative letter of reprimand for conducting herself in a manner to the prejudice of the armed forces by making threatening comments to Transportation Security Agency (TSA) agents at El Paso International Airport, TX.

7.  Her records contain an extensive history of counseling by various members of her chain of command for several infractions including:

	a.  Disrespecting several noncommissioned officers (NCO), commissioned officers, and military doctors of various services, in language and deportment.

	b.  Failing to maintain proper military bearing.

	c.  Failing to obey lawful orders on multiple occasions.

	d.  Being involved in verbal confrontations with NCOs, officers, and Soldiers.

	e.  Moving from her assigned living quarters in a combat zone without authorization or notification.
	f.  Refusing to work.

	g.  Failing to go at the time prescribed to her appointed place of duty.

	h.  Refusing to undergo a mental evaluation ordered by her battalion commander.

	i.  Refusing to give the battalion surgeon a package addressed to him.

	j.  Failing to report for the Army Physical Fitness Test.

	k.  Multiple other instances of disrespect, insubordination, hostile tone and demeanor, lack of bearing, and unprofessionalism.

8.  On 30 September 2007, the immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 14-12c of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) for a pattern of misconduct.  He remarked that she had shown discreditable conduct that was prejudicial to the good order and discipline of the armed forces.  Specifically, she had shown a pattern of misconduct that included several occasions of disrespect, lack of military bearing, and disregard for Army custom and courtesies.  She was unable to comply with Army standards and failed to correct her behavior after numerous counseling sessions and attempts to correct her failure to conduct herself according to the minimum standards required by a member of the armed forces.

9.  On 3 and 4 October 2007, she underwent:

	a.  A mental status evaluation by a clinical psychologist who determined she did not have any psychiatric condition which would have prevented her from adhering to the standards of behavior and conduct.  She met retention standards and did not meet the criteria for a medical evaluation board (MEBD).

	b.  A separation physical examination that determined she was fit for retention and/or separation with a physical profile of "111211."  She was diagnosed with hypothyroidism; chronic migraines; tenosynovitis, bilateral hands/wrists; hearing loss; acute urethritis; and post-menopausal.

10.  On 4 October 2007, she acknowledged receipt of the notification memorandum and subsequently consulted with legal counsel who advised her of the basis for the contemplated separation for misconduct and its effect, of the rights available to her and the effect of any action taken by her in waiving her rights, and of the type of discharge and its effect on further enlistment or reenlistment.  She acknowledged she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and that she could be ineligible for many or all benefits as a veteran under Federal and State laws.  She elected consideration of her case by an administrative separation board and/or appearance before an administrative separation board and elected not to submit a statement in her own behalf.

11.  On 15 November 2007, an administrative separation board convened at Bagram Airfield, Afghanistan, and found the applicant committed misconduct consisting of discreditable conduct and conduct prejudicial to the good order and discipline.  The board determined that she was undesirable for further retention and that her rehabilitation was not deemed possible, and recommended her discharge with an under other than honorable conditions discharge.

12.  On 19 November 2007, the convening/separation authority approved the separation board's findings and recommendations and ordered her discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted grade.

13.  On 21 November 2007, the Combined/Joint Task Force 82, Operation Enduring Freedom, Bagram Airfield, Afghanistan published Orders 325-001, dated 21 November, 2007, reducing her to private (PV1)/E-1 effective 19 November 2007.

14.  She was accordingly discharged on 13 December 2007.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a character of service as under other than honorable conditions.  This form shows she completed 1 year, 2 months, and 6 days of net active service this period.  Item 28 (Narrative Reason for Separation) shows the entry "Misconduct (Serious Offense)).

15.  On 17 December 2008, the Army Discharge Review Board (ADRB) granted her relief in the form of an upgrade of her discharge to a general, under honorable conditions discharge.  The ADRB also directed her separation authority be changed from Army Regulation 635-200, paragraph 14-12c to Army 
Regulation 635-200, paragraph 14-12b, her separation code be changed from "JKQ" to "JKA," her reentry (RE) code be changed from RE-4 to RE-3, and the narrative reason for her separation be changed from "Misconduct - Serious 
Offense" to "Misconduct."   Accordingly, her DD Form 214 was voided and she was issued a new form to reflect the changes.

16. On 23 July 2009, the ABCMR denied her request.

17.  She submitted copies of various medical records, charts, consults, sick call slips, medical memoranda, physical profiles, and sworn statements, as well as a legal brief as follows:

	a.  On 18 November 2006, she was treated for pepper spray after showing a reaction to irritants.

	b.  A printout from the North Carolina Medical Journal detailing the health hazards associated with pepper spray.

	c.  A memorandum, dated 18 April 2007, showing she was exposed to pepper spray and suffered wheezing that developed into a rash for several weeks but was ultimately treated with medications.

	d.  A discharge progress note, dated June 2007, showing she had a reactive airway due to pepper spray.

	e.  A Traumatic Brain Injury (TBI) evaluation, dated 3 June 2007, diagnosing her with reactive airway.

	f.  Various chronological records of medical care showing an allergic reaction, chest pain, arthritis, back strain, hearing loss, joint pain, and other medical issues.

	g.  An unsigned/unapproved temporary physical profile, dated 13 June 2007, for vocal cord dysfunction.

	h.  A second unsigned/unapproved temporary physical profile for the illnesses of "thyroiditis, GERD [Gastroesophageal Reflux Disease], DOE [dyspnea on exertion], and headaches."

	i.  An email, dated 2 October 2007, showing a military physician recommending her return to the United States and hoping she would sort out any issues with her chain of command.

	j.  A printout of TBI symptoms.

	k.  A chronological record of medical care, dated 1 June 2007, showing she had difficulty breathing.

	l.  Four letters of recommendation, dated on various dates, from civilian and/or military friends and colleagues, who comment on her professionalism, dedication, patriotism, and selfless service.

	m.  A 9-page memorandum in legal brief format wherein she describes the events that occurred in Afghanistan and concludes she should have been separated for disability by reason of TBI with migraines and vertigo, reactive airway disease, thyroiditis, hypothyroidism, lower back trauma, tendonitis, and degenerative disc disease.

18.  There is no indication in her records that she was issued a permanent physical profile that affected the duties required of her specialty or grade or would have warranted her entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no indication that her records underwent an MEBD or that she was referred to a physical evaluation board (PEB).

19.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

20.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical 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.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  In pertinent part, 

	a.  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/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	b.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states 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.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

	c.  Paragraph 4-3 states that 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 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. 

22.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded to an honorable discharge and the narrative reason for her separation should be changed to medical.

2.  The evidence of record shows that the applicant displayed a pattern of misconduct as evidenced by her multiple counseling statements for insubordination, disrespect, and other infractions.  Accordingly, her chain of command initiated separation action against her.  She elected an administrative separation board.

3.  A board subsequently convened and found she committed misconduct consisting of discreditable conduct and conduct prejudicial to the good order and discipline.  It determined she was undesirable for further retention and her rehabilitation was not deemed possible, and recommended her discharge with an under other than honorable conditions discharge.  The convening/separation authority subsequently approved those findings and recommendations.  Her discharge was appropriate because the quality of her service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

5.  With respect to the medical discharge, PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

6.  The evidence of record shows she suffered various illnesses and/or injuries and that she was issued appropriate temporary physical profiles that identified her physical and/or geographical limitations.  However, her records do not show that she was medically disqualified for retention.  There is no evidence that any of her illnesses would have warranted her referral to the PDES.  Therefore, she was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

7.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  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.  She did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief she requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Regarding the disability separation issue, 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 concerning her narrative reason for separation to disability are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090002009, dated 23 July 2009.

2.  Regarding the new issue of upgrading her discharge to honorable, 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)                                         AR20090020462



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020462



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1