IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100010468 


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 correction of his military records to show he was medically retired in August 2007.

2.  The applicant states the Army failed to provide him a physical evaluation board (PEB) so that his heart condition and other combat-related injuries could be medically evaluated.  He contends that he was told to send all of his medical documentation.  He was told that he fell through the crack, was forgotten, or was overlooked.  He asks for assistance to obtain a retirement due to his medical condition.  He thinks he and his family deserve such a retirement.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 22 February 2005, with enclosures.

CONSIDERATION OF EVIDENCE:

1.  On 15 January 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom as a member of the U.S. Army Reserve in the rank of staff sergeant/pay grade E-6.  He was subsequently assigned to Fort Jackson, South Carolina.

2.  On 17 May 2006, the applicant accepted nonjudicial punishment (NJP) for wrongful use of cocaine.  The NJP indicates he was reduced to sergeant/pay grade E-5.

3.  On 22 May 2006, an MEB considered the applicant's medical condition.  He was diagnosed with:

	a.  ischemic heart disease manifested by angina pectoris and status-post two coronary stents with residual angina pectoris requiring medication;

	b.  hypercholesterolemia with proper treatment;

	c.  chronic post-traumatic stress disorder (PTSD);

	d.  mid-back pain;

	e.  pes planus (flatfeet);

	f.  neck pain;

	g.  obstructive sleep apnea; and

	h.  axis I, chronic PTSD manifested by exposure to events that seriously threatened his physical integrity.

4.   Items a, c, and h in the preceding paragraph were diagnosed as being below retention standards.  The MEB referred the applicant to a physical evaluation board (PEB).  The applicant indicated he desired to continue on active duty.  On 10 July 2006, the findings and recommendation of the MEB were approved.  On 13 July 2006, the applicant agreed with the MEB's findings and recommendation.

5.  On 10 August 2006, the Commander, U.S. Army Training Center and Fort Jackson, determined the applicant's medical condition was not the direct or substantial contributing cause of his misconduct that led to the recommendation for an administrative separation.  Further processing of his case through medical disability channels was disapproved.  The applicant's case was referred to the standing administrative separation board.

6.  On 22 November 2006, a board of officers convened to determine whether the applicant should be administratively separated from active duty.  The board found the applicant had wrongfully used cocaine and recommended his separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the commission of a serious offense.  The board further recommended that he receive a general under honorable conditions characterization of service.

7.  On 14 December 2006, an attorney-advisor for the Staff Judge Advocate, Fort Jackson, reviewed the separation board proceedings and determined the proceedings were in compliance with Army Regulation 635-200.

	a.  The applicant was properly notified in writing of the bases of the proposed separation.

	b.  The board president was properly appointed and the board was properly composed.

	c.  The case was presented in a hearing and the applicant was represented by qualified counsel who had the opportunity to challenge members, examine and cross-examine witnesses, and to present evidence on behalf of the applicant.

	d.  The recommended characterization of service was within the range of options available to the board.

	e.  The authority for the board (Army Regulation 635-200, paragraph 14) was for Soldiers who commit misconduct including the commission of serious offenses.  The wrongful use of cocaine qualified as a serious offense.

	f.  The applicant did not raise any specific legal issues for consideration.

	g.  The attorney-advisor recommended that the separation authority approve the board findings and recommendations.

8.  On 11 January 2007, the Commander, U.S. Army Training Center and Fort Jackson, recommended separation of the applicant with a general under honorable conditions characterization of service.  The memorandum indicates the separation board proceedings with all enclosures, summary, and legal review were sent to the Commander, U.S. Army Human Resources Command, Attention:  DARP-PR, 1 Reserve Way, St. Louis, Missouri.

9.  On 22 June 2007, the Chief, Military Personnel Law Branch, Office of the Judge Advocate General (TJAG), Washington, DC, wrote a memorandum for the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1 [Personnel], Washington, DC.  In this memorandum, the G-1 was informed that the physical examination included with the applicant's involuntary separation action was legally insufficient because it was over 1 year old.

	a.  Title 10, U.S. Code, section 1145(a)(4)(A), requires that a Soldier undergo a physical examination immediately prior to involuntary separation.  Section 1145(a)(4)(B) authorizes waiver of this requirement only when the Soldier has undergone a physical examination within 12 months before separation, and then only with the consent of the Soldier and concurrence of the unit commander.

	b.  The applicant underwent a physical examination on 10 May 2006 for the purpose of a medical board after being medically evacuated from Iraq for cardiac problems.  The medical examiner found him not qualified for service and referred him to an MEB.  The MEB convened on 22 May 2006 and subsequently referred him to a PEB for disability processing.

	c.  Army Regulation 635-200, paragraph 1-32b, requires a mental status evaluation for Soldiers being processed for separation under chapter 14 of this same regulation.  Furthermore, detailed information about the reasons for considering a Soldier for separation will be provided to the attending medical personnel to permit thorough understanding of the contemplated action.  The psychiatric evaluation contained in the file was prepared as part of the applicant's MEB and predates the initiation of the administrative separation.  Moreover, the mental health evaluation occurred prior to the misconduct.  Therefore, the mental health professional did not have the detailed information about the reasons for the applicant's proposed separation.  Accordingly, the regulatory requirements were not met.

	d.  Accordingly, the applicant had to undergo both a physical examination and a mental status evaluation in order to comply with the regulatory requirements for separation under the provisions of Army Regulation 635-200, chapter 14.

	e.  Based on the evidence available at the time, the applicant was scheduled to be released from active duty (REFRAD) on 22 May 2007.  He had been retained on active duty for the purpose of medical care.  Army Regulation 
635-200 prohibits retaining Soldiers for the sole purpose of taking administrative action.  As a result, the administrative action would have been terminated upon the applicant's REFRAD unless he was further retained on active duty via lawful authority.

	f.  On 22 May 2007, a single court-martial charge was preferred against the applicant for the same misconduct for which he had previously received NJP.  Based on the pending REFRAD and its adverse impact on the administrative separation action, as well as recognizing that the drug misconduct was already disposed of via NJP, some may perceive that the purpose of preferring the court-martial charge was to retain the applicant on active duty in order to allow the separation action to continue (as opposed to because further punitive action was warranted).  Such a motive would be contrary to the policy intent reflected in Army Regulation 635-200 and would bring into question whether the court-martial charge was preferred for a proper purpose.

10.  On 29 June 2007, the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, wrote a memorandum for the Commander, Headquarters, U.S. Army Training Center and Fort Jackson.  In this memorandum, the commander was informed that the involuntary separation action was returned because it did not contain the required separation physical examination.

11.  The applicant's DD Form 214 for the period ending 26 August 2007 indicates:

	a.  he was REFRAD in the rank of staff sergeant/pay grade E-6 due to completion of required active service with an honorable characterization of service;

	b.  his reentry code is 1 [fully eligible for reenlistment without waiver];

	c.  he was brought on active duty on 15 January 2004 in support of Operation Iraqi Freedom;

	d.  he served in Iraq from 15 January to 22 November 2004;

	e.  he was retained on active duty from 9 December 2004 to 22 May 2007 for completion of the Medical Retention Processing Program; and

	f.  his last active duty assignment was with the U.S. Army Student Detachment, Fort Jackson.

12.  Title 10, U.S. Code, provides:

	a.  chapter 61- disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay;

	b.  section 1201 - for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling; and

	c.  section 1203 - for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.

13.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides:

	a.  in paragraph 4-3 that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing;

	b.  that such a case is to be referred to the officer exercising general court-martial jurisdiction;

	c.  that the general court-martial convening authority may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation;

	d.  this authority may not be delegated;

	e.  that a copy of the determination must be entered into the case file when it is forwarded; and

	f.   that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to physical disability.

2.  The applicant argues that the Army failed to provide him a PEB so that his heart condition and other combat-related injuries could be medically evaluated.

3.  The evidence of record clearly shows that in July 2006 an MEB referred the applicant to a PEB for evaluation.  However, before this action could be processed, the commanding general stopped all medical processing due to the applicant's misconduct that resulted in NJP with a reduction in pay grade to E-5.

4.  On 11 January 2007, the commanding general recommended approval of the administrative separation board's recommendation to discharge the applicant with a general under honorable conditions characterization.

5.  In June 2007, TJAG found the administrative separation action legally insufficient because it lacked a current physical examination or a valid mental health evaluation.  Furthermore, TJAG noted the perception that a single court-martial charge may have been preferred as a means of holding the applicant on active duty past his REFRAD date.  The administrative separation packet was returned to the Commander, Fort Jackson, for compliance with governing regulations.

6.  The applicant was REFRAD on 26 August 2007 and returned to his Reserve unit.  The DD Form 214 indicates his rank as staff sergeant/pay grade E-6 and his characterization as honorable.  The narrative reason for separation is completion of required active service.

7.  The applicant's DD Form 214 seems to indicate that all action regarding his administrative separation was voided.  If this is, in fact, what happened, his medical processing should have been completed in July or August prior to being REFRAD.  Had this action occurred, the applicant would have most assuredly received a fair and complete medical evaluation resulting in either a retirement due to physical disability, separation with severance pay due to physical disability, or have been found fit for duty and returned to his unit.  Unfortunately, none of these actions occurred.

8.  Accordingly and as a matter of equity, the applicant should now be afforded due process by being given the opportunity to undergo another MEBD, if necessary, and a PEB.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  directing the Office of the Surgeon General (OTSG) to contact him and arrange via appropriate medical facilities, an MEBD, if necessary, and

	b.  if appropriate, by referral to an informal PEB.

2.  The OTSG is further directed to use appropriate invitational travel orders to accomplish the MEBD and PEB, if necessary.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and to participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  In the event a PEB finds the applicant has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 26 August 2007.

5.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting a medical retirement.



      ___________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)                                         AR20100010468



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ABCMR Record of Proceedings (cont)                                         AR20100010468



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