IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100017558 


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 the records of his son, a former service member (FSM), be corrected as follows:

* Upgrade his discharge from general to honorable with the appropriate codes
* Promote him to sergeant first class (SFC)/E-7
* Medically retire him by reason of disability with entitlements to all benefits
* Restoration of his active duty pay from the date of discharge
* Reimbursement of medical expenses occurred since 2006 after having been diagnosed with Glioma (right frontal lobe, terminal brain cancer)

2.  The applicant states his son's behavior which led to his discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial was directly related to his Glioma.  This medical condition should have been treated while he was on active duty.

3.  The applicant provides the following documentary evidence on behalf of the FSM:

* Durable Power of Attorney, dated 1 February 2006
* Letter from Neurosurgical Associates of San Antonio, dated 11 February 2010
* Hospital Discharge Summary and Attachments
* Promotion Orders to sergeant (SGT)/E-5 
* Army Discharge Review Board (ADRB) decision
* Medical letter from Dr. Hoxxxxxxxx
* Narrative summary care from Neurosurgical Associates of San Antonio, dated 1 July 2010 with Attachments
* Referral for civilian medical care
* Medical record - Supplemental Medical Data
* Memorandum from Dr. Bxxxxxxx
* Various chronological records of medical care
* Laurel Ridge Treatment Center Medical Report
* Discharge Summary and allied documents from Cape Fear Valley Medical Center
* Various physical profiles
* Neurological Consultation Report from Wilson Orthopedic Surgery and Neurology Center
* Report of Medical Examination
* Report of Medical Assessment
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 22 June 1969 and enlisted in the Regular Army on 3 November 1993.  He was trained in and held military occupational specialties (MOS) 11B (Infantryman) and 31C (Single Channel Radio Operator).  

2.  He served through multiple reenlistments or extensions (at least 4 reenlistments), within and outside of the continental United States, he held MOS 79S (Retention Noncommissioned Officer (NCO)) at the time of his separation, and attained the rank/grade of sergeant (SGT)/E-5 on 1 January 1996 and staff sergeant (SSG)/E-6 on 1 April 1999.  

3.  His records also show he served in Korea from 15 February 1998 to 14 February 1999 and Kuwait/Iraq in support of Operation Iraqi Freedom from 3 March through 1 October 2003.  

4.  He was awarded the Army Commendation Medal (4th Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (3rd Award), Korea Defense Service Medal, National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Humanitarian Service Medal, NCO Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon, Air Force Training Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Combat Infantryman Badge, Expert Infantryman Badge, Parachutist Badge, and one overseas service bar.

5.  On 16 October 2002, the U.S. Army Criminal Investigation Command (USACIDC, also referred to simply as CID), Fort Carson, CO, received an anonymous tip of a promotion fraud.  The caller alleged the FSM falsified orders for the U.S. Army Ranger School and that he/she knew the FSM did not go to Ranger School because he was hospitalized during the time he was alleged to have attended Ranger School.  

	a.  On 12 November 2002, the CID completed a preliminary analysis of the FSM's personnel records and promotion history.  The investigation disclosed the FSM never attended Ranger School; yet, his DA Form 201 (Military Personnel Records Jacket) showed he completed Ranger School in 1995.  The dates of his alleged attendance at Ranger School pre-dated his promotion to SGT/E-5.  He was subsequently interviewed and claimed he attended Ranger School but did not complete training due to an injury.  

	b.  On 25 March 2003, the final CID investigation determined the FSM had removed documentation from his medical records which would have physically prohibited him from attending certain military training courses, altered another service member's Ranger School completion orders to receive promotion points to the next higher grade, and collected base pay and all entitled benefits for that rank with an estimated loss of $27,000.00 to the Government.  The CID investigation established probable cause to believe the FSM committed the following offenses:

* Wearing an unauthorized badge
* Larceny of Government funds 
* Fraud
* Altering a public record
* Making a false official statement
* Removing a public record

6.  On 6 October 2003, while assigned to Headquarters and Headquarters Company, 3rd Brigade Combat Team, Fort Carson, CO, as a SSG, and after consulting with counsel, he declined trial by a court-martial and he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), at a closed hearing, for wrongfully and without authority wearing a Ranger Tab and willfully and unlawfully removing a public record (medical record).  His punishment consisted of the following:

* Reduction to sergeant (SGT)/E-5
* A forfeiture of $1,141.00 pay for 2 months (suspended)
* 45 days of restriction and extra duty (suspended)

7.  He was advised of his right to appeal but elected not to do so.

8.  On 4 March 2004, the suspended portion of the above punishment was vacated and ordered executed after the FSM stole monies of a value of about $8,777.34, the property of the United Services Automobile Association.

9.  On 4 March 2004, court-martial charges were preferred against the FSM for:

* One specification of stealing money, of a value of $8,777.34
* One specification of stealing a weed eater and a refrigerator
* One specification of willfully and unlawfully altering a public record to reflect Ranger School

10.  On 4 March 2004, the FSM consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions.  He was advised of the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

11.  In his request for discharge, he indicated he was making this request of his own free will and that he had not been subjected to any coercion whatsoever by any person.  He also acknowledged he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

12.  On 9 March 2004, the FSM's immediate commander recommended approval of the request for voluntary discharge with the issuance of an under other than honorable conditions discharge.

13.  On 9 March 2004, the FSM's senior commander recommended disapproval of the request for voluntary discharge with the issuance of an under other than honorable conditions discharge.
14.  On 18 March 2004, the separation authority approved the FSM's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  The separation authority also directed that the FSM be reduced to the lowest enlisted grade.  On 19 March 2004, the FSM was accordingly discharged.  

15.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with an under other than honorable conditions discharge.  He had completed 11 years, 5 months, and 12 days of creditable active military service during this period of enlistment.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "4."

16.  On 25 February 2010, the Army Discharge Review Board (ADRB) found the length and quality of the FSM's service mitigated the discrediting entry in the service record.  Accordingly, the ADRB voted to grant him partial relief in the form of an upgrade of his character of service to general, under honorable conditions and restored his rank to SGT/E-5.  However, the ADRB determined his narrative reason for separation was both proper and equitable and voted not to change it.  

17.  Accordingly, his original DD Form 214 was voided and he was issued a corrected form that shows a character of service of general, under honorable conditions.  However, the separation authority, separation code, Reentry code, and narrative reason for separation remained unchanged. 

18.  The FSM's records reveal the following:

* Since being promoted to SGT in 1996 and while serving as a SSG, he received multiple NCO Evaluation Reports (NCOER) which reflect he was rated fully capable or among the best by his rater and a superior 
* All his NCOERs reflect a "PASS" entry for the Army Physical Fitness Test with comments such as "physically fit," "exceeded Army fitness standards," "mentally and physically fit," "Completed 26-mile ascent and descent of 14,110 ft. Pike's Peak with 55 pound rucksack," "conducted hand-to-hand fighting training"
* None of his NCOERs listed a physical profile or indicated his duty performance was hindered by a physical profile
* He was fully qualified for reenlistment; and received multiple performance, achievement, and service awards
* He completed two overseas tours in Korea and Kuwait/Iraq with no indication of any physical limitations
19.  The FSM's father submitted the following documents on behalf of the FSM:

	a.  A medical record, dated 11 April 1995, from Cape Fear Valley Medical Center, Fayetteville, NC, wherein Dr. Pxxxxxxxx stated the FSM was involved in a parachute jump incident on 10 April 1995 when his parachute entangled with another.  He fell and struck his head on the ground.  He was noted to be unconscious initially then awoke and was quite combative at the scene.  On admission, he was drowsy but normal otherwise.  The neurological examination showed no focal deficits and he presented a normal CAT (CT) scan of the brain and a normal cervical spine film.  He did well after admission and responded readily and continued to improve.  His final diagnosis was that of a closed head injury with cerebral concussion.  He was discharged to go home with his wife and was advised to report to Womack Hospital at Fort Bragg for follow-up.

	b.  A radiology report, dated April 1995, wherein an impression was made that a CT of the brain demonstrated no acute focal abnormality. 

	c.  A medical record, dated 1 May 1995, at Womack Army Hospital, Fort Bragg, wherein Dr. Rxxxx stated a CT scan of the head revealed no evidence of a skull fracture.  Punctate tentorium of increased density was seen in the region of the right cerebellar tentorium, and may have presented small amounts of calcification along the tentorium.  

	d.  A neurological consultation, dated 15 April 1996, from Wilson Orthopedic Surgery and Neurology Center , Wilson, NC, wherein Dr. Kxxxxxx stated he retrieved the 1995 and 1996 Magnetic Resonance Imaging (MRI) scans and that they showed an area of hyperintensity over the right frontoperietal convexity.  These appeared stable between the studies and some of his records showed a diagnosis of cerebral contusion.  The FSM reported some aggressiveness and mood changes.  His current visit was promoted by a motor vehicle accident that occurred on 5 April 1996.  His problem was headache and neck pain with hand numbness following blunt trauma.  There was a previous history of significant head trauma with residual hemispheric contusional changes.  He appeared to have suffered a concussion and cervical sprain.  

	e.  A memorandum, dated 13 May 1996, from a neurologist who stated the FSM was seen at the Neurology clinic after having suffered two closed head injuries, one of which resulted in a brain contusion.  The neurologist opined that it was best for the FSM to continue on a physical profile against any airborne operations and that he be placed in a job that would minimize the risk of further head injury.  He remained worldwide deployable and met retention standards; however, further head injuries could place him at risk of permanent cognitive defect. 
	f.  A record of medical care, dated 25 August 1997, wherein the FSM was seen for his head injury and frontal lobe contusion.  The attending physician noted a decrease in the inhibition of temper.

	g.  A consultation sheet, dated 25 August 1997, related to the closed head injury and noted persistent cognitive and personality changes. 

	h.  A physical profile, dated 6 March 2003, for shoulder pain with limitation on overhead work and physical training medical record, dated 1 May 1995, 

	i.  A separation physical, dated 14 January 2004, wherein he was diagnosed as having sinusitis, right shoulder pain, ankle pain, foot pain, dyspepsia, difficulty sleeping, migraine headaches, depression, and hypercholesterolemia.  However, he was medically qualified for retention or separation. 

	j.  A medical statement, dated 1 February 2006, from Dr. Hxxxxxxxxx, at Brooke Army Medical Center (BAMC), Fort Sam Houston, TX, wherein he states the FSM was admitted to BAMC on 30 January 2006 for seizure and was found to have radiographic evidence of a high grade brain tumor, suspicious for gliobastoma multiforme.  He was transferred to Methodist Hospital for further care.  

	k.  A narrative summary of care, dated 9 March 2006, from the Neurological Associates of San Antonio, wherein Dr. Axxxxx indicated the FSM sustained a moderate closed head injury in 1995 around which time his behavior worsened. He underwent an MRI in 1995 that showed a small area of increased signal in the right front lobe.  A tumor was a possibility and follow up was recommended.  His MRI was repeated in 1996 and it was clear he had harbored a 2cm brain tumor in 1995 that was larger on his MRI in 1996.  He returned to unrestricted duty and served in Iraq and he was ultimately discharged in 2004.  A year after his discharge, he had his first seizure and he was brought to BAMC, Fort Sam Houston, where his brain tumor was diagnosed.  A 2006 MRI showed his right frontal lobe tumor had grown to the size of a racquetball and he was exhibiting more aggressive features.  Dr. Axxxxx added that it is well known that frontal brain lesions are associated with aggressive and inappropriate behavior.  He underwent a craniotomy and gross total resection of grade 2 astrocytoma with no complications.  He required chemotherapy and a prolonged follow-up.  He had brain cancer, a fatal condition in 99% of patients.

	l.  A medical report, dated 8 August 2008, from Dr. Mxxxxx who stated he had been following the FSM's condition in the Department of Psychosocial Oncology since January 2007 and that the FSM was being managed for frontal lobe astrocytoma.  His treatment was made more problematic by incidents of behavioral dyscontrol and periodic difficulties in managing his seizure medications.  

	m.  A discharge summary, dated 4 December 2009, including a medical history and physical, from Laurel Ridge Treatment Center, that show the FSM was admitted to inpatient psychiatric programming at this facility following a 
decompensation in functioning and an episode of psychosis with delusions about being in battle.  Prior to admission, he acknowledged he had taken two 10mg Ambien tablets and after that he had no recall of the events.  Additionally, prior to his admission, he reported having stopped taking Cymbalta.  He had a history of diagnosis with astrocytoma in February 2006, later followed by surgery and chemotherapy, and he had been previously impacted by a seizure disorder.  He underwent a routine history and physical with his doctor who noted he had a history of astrocytoma, right frontal lobe, status post craniotomy in February 2006, seizure disorder related to the craniotomy, and a history of right distal tibia and ankle fracture requiring surgical repair.  He was diagnosed with post-traumatic stress disorder (PTSD), seizure disorder, and problematic psychsocial and environmental issues.  He was discharged on 7 December 2009 in a fine mood with no evidence of psychosis. 

	n.  Two medical letters, dated 11 February and 1 July 2010, from Dr. Axxxxx wherein he states the FSM had been under his care since 2005 with frontal lobe glioma on the right.  His symptoms include disinhibition, difficulty with interpersonal relations, difficulty with apathy and anger management, and difficulty with insight and judgment.  He opines the FSM suffers from all these difficulties due to the glioma and secondary insults of surgery and adjuvant treatment. 

20.  An advisory opinion (AO) was obtained from the Office of the Surgeon General (OTSG) on 24 August 2010.  Three consultants in neurology, neurosurgery, and psychiatry opined the following:

	a.  The FSM had a past medical history of a closed head injury with an astrocytoma.

	b.  It is unlikely that the acts of misconduct were attributable to the trauma or a tumor.  The premeditated acts of bad conduct required forethought, planning, and abstract reasoning.

	c.  It is possible the personality and temperament changes noted by the FSM and his wife would be sequel of the intracerebral changes.  Without knowledge of his baseline, a definitive answer cannot be given.

	d.  It is unclear if it is reasonable to assert that the FSM's tumor should have been diagnosed prior to his discharge in 2004.  He was without progressive or disabling symptoms according to Dr. K------ in April 1996.  Further imaging was recommended if progressive or worsening symptoms occurred.  The record documents "inhibition of temper is decreased" in 1997 with no repeat imaging.  The assessment of "personality changes secondary to frontal lobe contusion" was recorded with 2 weeks of limited duty and a plan for follow up in 4 weeks.  There was no follow up neurology documentation.

	e.  Due to a lack of medical documentation from 1997 to 2004, all three consultants agree that the FSM should receive a medical evaluation board (MEB) to determine if there is a basis for medical disability retirement.

21.  On 5 October 2010, the FSM's father submitted a rebuttal to the AO wherein he stated the following:

	a.  The statements made in the AO are in conflict with a statement previously made by Dr. Axxxxx of the Neurological Associates of San Antonio.

	b.  Dr. Axxxxx previously stated the 1995 MRI showed a small area of increase signal in the frontal lobe.  A tumor was a possibility and follow up was recommended.  Follow up was never accomplished.

	c.  The frontal lobe is responsible for an individual's reasoning and control over primal urges.

	d.  A repeated MRI in 1996 showed the FSM harbored a 2cm brain tumor in 1995 and that was slightly larger on his 1996 MRI.

	e.  The FSM complained of increased headaches and depression, irritability, and mood swings while on active duty.

	f.  The FSM was misdiagnosed.  He should have been receiving treatment for a brain tumor all along.

	g.  The Army left him on jump status despite a recommendation that he should have been taken off, that he should not have been allowed to become dehydrated, sleep-deprived, overheated, or placed in stressful situations.

22.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

23.  Paragraph 1-33 of Army Regulation 635-200 states except in separation actions under chapter 10 and as provided in paragraph 1-33b of this regulation, disposition through medical channels takes precedence over administrative separation processing.  When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7, 14, or 15, does not meet the medical fitness standards for retention (Army Regulation 40-501 (Standards of Medical Fitness)), the individual will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB.  

	a.  If the MEB findings indicate that referral of the case to a physical evaluation board (PEB) is warranted for disability processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined:

		(1)  The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

		(2)  Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

	b.  The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated.

	c.  The GCMCA’s signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB.  Copies of the GCMCA’s decision will be furnished to the unit commander and included in the administrative separation proceedings.  The unit commander will suspend processing of the administrative separation action pending the PEB.  If the Soldier is found physically fit, the administrative separation action will be resumed.  If the Soldier is found physically unfit, the administrative separation action will be abated.

	d.  Disability processing is inappropriate if the conditions in b(1)(a) and (b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent.  Accordingly, disability processing is inappropriate in separation actions under chapter 10.

24.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

25.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "KFS" is the correct code for Soldiers separating under the provisions of chapter 10, Army Regulation 635-200.

26.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table in effect at the time of the FSM's discharge shows the SPD code and a corresponding RE code.  The SPD code of "KFS" shows a corresponding RE code of "4."

27.  Army Regulation 635-40 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.  

28.  Paragraph 3-1 of Army Regulation 635-40 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.


29.  Paragraph 4-3 of Army Regulation 635-40 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB 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 or other circumstances warrant disability processing instead of alternate administrative separation.

30.  Paragraph 3-2b of Army Regulation 635-40 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.

31.  Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures under References (a) and (b) for retiring or separating Service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve.

32.  Section E3.P3.4 of DODI 1332.38 states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  Common Military Tasks:  Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.

	b.  Physical Fitness Test:  Whether the member is medically prohibited from taking the respective Service's required physical fitness test. 

	c.  Deployability:  When a member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the
member individually or as part of a unit with or without prior notification to a location outside the Continental United States. 

	d.  Special Qualifications:  For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his son's records should be corrected as follows:  His general discharge should be upgraded, he should be promoted to SFC/E-7, he should be medically retired by reason of disability with entitlements to all benefits, his active duty pay should be restored from the date of discharge, and he should be reimbursed for medical expenses incurred since 2006 due to having been diagnosed with Glioma.

2.  With respect to the medical retirement, his parachute injury in 1995 is not in question.  However, a Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his office, grade, rank, or rating.  This is not the case here.  The FSM's multiple reenlistments, completion of various training courses, and NCOERs clearly show he continued to perform the duties required of his grade or office with superior results.  He passed all of his APFT's since 1995, met the height and weight standards, was rated successful or among the best with superior potential, and he was fully able to perform the duties of his grade and/or MOS.  

3.  Furthermore, the medical records that were provided by the applicant do not appear to be complete.  The available records show that after suffering his injury, he underwent a CT scan that demonstrated no acute focal abnormality.  There is no medical evidence available to show he was ever placed on a permanent physical profile subsequent to his injury, and thus no evidence to show he was unfit to perform his duties because of this injury or any medical condition.  The lack of medical documentation between 1997 and 2004 further confirms the FSM was fit for duty.

4.  His medical records show he underwent a medical examination prior to discharge in 2004 that noted various routine illnesses and/or prior surgeries.  However, nothing in his medical records indicates he was diagnosed with an injury or disease at the time of his discharge that would have warranted his entry into the physical disability evaluation system (PDES).  The FSM was never diagnosed with a medical condition that would have warranted his entry into the PDES.  Because all the evidence of record shows he was fully capable of performing his duties up until his discharge, there was no reason to consider him for entry into the PDES. 

5.  Further, the reason for his separation (misconduct) was not related to any medical conditions (head trauma) he had been diagnosed with and there were no other compelling reasons for the GCMCA to proceed with PDES processing or a PEB.  As indicated by the OTSG consultants, it is unlikely the acts of misconduct were attributed to the trauma or tumor.  The premeditated acts of misconduct required forethought, planning, and abstract reasoning.  Even the 9 March 2006 narrative summary provided by the applicant indicates his type of legion is associated with aggressiveness and inappropriate behavior, not the patient, well-thought out behavior needed to commit the acts of misconduct for which the FSM was discharged. 

6.  Having been found fully qualified for separation or retention after his chain of command initiated separation action against him, a review was therefore not required by Army Regulation 635-40.  In the absence of evidence to the contrary, it is presumed that the GCMCA was aware of the requirements of Army Regulation 635-200 and acted accordingly.  But even if the GCMCA failed to make a determination regarding the FSM's PDES processing, this error would have been harmless because:

   a.  The nature of the FSM's misconduct (forgery, cheating, theft, fraud) had no conclusive relation to the medical condition, diagnosed 2 years after he was discharged.

   b.  The applicant has presented no compelling evidence that shows other circumstances warranted the FSM's disability processing over administrative separation.

7.  With respect to his character of service, the FSM's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

8.  Based on his record of indiscipline and extensive misocnduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

9.  With respect to the narrative reason of his separation, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial due to misconduct.  Absent his misconduct, there was no fundamental reason to prefer court-martial charges against him.  The underlying reason for his court-martial charges and subsequent voluntary discharge was his misconduct.  He elected to be discharged in lieu of a court-martial.  The only valid narrative reason for separation permitted under this paragraph is "In Lieu of Trial Court-Martial."  Therefore, he received the appropriate narrative reason for separation.

10.  With respect to his SPD and RE codes, again, the evidence of record shows he was discharged under the provisions of chapter 10 of Army Regulation 
635-200 in lieu of trial by court-martial.  The separation code associated with this type of discharge is "KFS" and the appropriate RE code associated with this type of discharge and/or SPD code is an RE code of "4."  Therefore, he was assigned the appropriate SPD and RE codes associated with his discharge.

11.  With respect to his promotion to SFC/E-7, his records show the highest rank/grade he attained while serving in the military was SSG/E-6.  However, this promotion was attained in part due to fraud.  He may have been selected for advancement to the next rank (SFC/E-7) but he was never promoted to SFC/E-7. Before his sequence number materialized, he accepted NJP under the provisions of Article 15 of the UCMJ on 6 November 2003 for misconduct that resulted in his reduction to SGT/E-5.  Once he was reduced, he was no longer a SSG promotable.  The reduction as a result of NJP negated his promotable status.  He held the rank/grade of SGT/E-5 until he was discharged on 19 March 2004.

12.  With respect to restoration of his active duty pay from the date of discharge, the evidence of record shows he was discharged on 19 March 2004.  His discharge meant a complete severance from all military status gained by enlistment.  Since the FSM had no military status, he would not be entitled to any pay or allowances. 

13.  With respect to the request for the reimbursement of medical expenses, the ABCMR corrects records; it does not authorize pay for medical expenses after complete severance from the Army.  The ABCMR is not authorized to compensate for pain, suffering, or consequential damages.  Additionally, the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records.  

14.  The applicant has failed to show through the evidence submitted or the evidence of record that the FSM was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.




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)                                         AR20100017558



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20100017558



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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