IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110012017 


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.  This case comes before the ABCMR on a remand from the United States Court of Federal Claims dated 9 June 2011.  The Court directs the Army Board for Correction of Military Records (ABCMR) to determine whether the:

* applicant’s rank of specialist (SPC)/E-4 was proper
* applicant was appropriately processed through the physical disability evaluation system (PDES) while undergoing administrative separation proceedings 
* applicant was properly discharged in light of her service

2.  The applicant filed a complaint with the U.S. Court of Federal Claims on 29 November 2010 seeking promotion to sergeant (SGT)/E-5, an upgrade of her discharge to fully honorable, and full medical disability benefits.  She raised procedural issues that she claimed were not previously considered by the ABCMR and which may affect the outcome of her claims.  She essentially stated:

	a.  She was an Army reservist who served on active duty between November 2006 and December 2007 in Afghanistan with the 160th Military Police (MP) Battalion as a combat medic.  Prior to her deployment, she was sprayed with pepper spray during pre-deployment training and suffered an allergic reaction to the pepper spray that required hospitalization.   She alleged that she was diagnosed with reactive airway disease by an emergency room physician and instructed not to serve in a capacity in which she would be exposed to pepper spray.  She claims her unit was notified of her medical condition.  
	b.  She also states she was promoted to SGT/E-5 in December 2006 before the unit deployed in January 2007 where she was assigned to work at a correctional facility.  However, she served as an E-4 in Afghanistan.  Additionally, during her time in Afghanistan she was exposed to pepper spray on a number of occasions.  She requested to be transferred to work outside the correctional facility but no transfer was made.  She subsequently complained to the Inspector General (IG).

	c.  In April 2007, her repeated exposure to pepper spray caused her thyroid to become inflamed and enlarged and to cease functioning properly.  While leaving a flight line, she lost consciousness, fell and suffered traumatic brain and spinal injuries.  Her battalion was notified of the incident but she was ordered to return to duty.  After suffering additional exposure, she was eventually reassigned to a military hospital.  Her thyroid condition continued to worsen and she was evacuated to Germany.  Upon her return to her unit, she was returned to duty despite a request by a military physician that she be evaluated by a medical separation board.  After a renewed cycle of evacuation for treatment, in Germany and after her subsequent return to Afghanistan, she filed a complaint with her unit.  At that time, her battalion ordered an administrative separation board which recommended her discharge with an under other than honorable conditions character of service.  She completed her tour in Afghanistan and returned to the United States.  She was discharged from active duty on 13 December 2007. 

	d.  She initially filed an application with the Army Discharge Review Board (ADRB) that granted her partial relief in that it ordered an upgrade of her discharge to an under honorable conditions (general) character of service.  She also filed multiple applications with the ABCMR but all her requests were denied. 

	e.  On 1 December 2008, she was awarded a 10% service-connected disability rating by the Department of Veterans Affairs (VA) which excluded consideration of her physical condition that arose out of her service in Afghanistan because of the nature of her discharge.  She also received a 100 percent (%) disability rating percentage by the Social Security Administration (SSA). 

	f.  The applicant asked the Court to award her promotion to E-5 with back pay plus interest, an enlistment bonus of $15,000.00, and a correction to her record to show she was discharged for medical reasons (Traumatic Brain Injury) with an honorable discharge.

3.  The applicant included with her petition to the Court the following documents which the ABCMR will consider:

* DD Form 689 (Individual Sick Call Slip), dated 18 November 2006
* Standard Form (SF) 558 (Emergency Care and Treatment), dated 18 November 2006
* Front page of DA Form 2823 (Sworn Statement)
* Letter from the Department of the Army IG (DAIG), dated 1 March 2007
* Memorandum for transfer, dated 14 April 2007
* Memorandum of Pepper Spray Exposure, dated 18 April 2007
* SF 600 (Chronological Record of Medical Care), dated 14 and 18 April 2007
* Denial for medical transfer memorandum, dated 20 April 2007
* Attachment memorandum, dated 3 May 2007
* SF 509 (Discharge Progress Notes), dated 2 June 2007
* SF 600, dated 4, 5, 6, and 7 June 2007
* Radiological Examination Report, dated 5 June 2007
* DA Form 3349 (Physical Profile)
* Patient Movement Record
* Memorandum for Record (MFR), dated 24 September 2007
* Notice of Command Referral for Mental Health Evaluation 
* Email exchange
* Self-authored complaint letter, dated 10 October 2007
* Administrative Separation Board Proceedings
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Photographs of various identification cards
* Recognition letter, dated 24 April 2010
* Extract of an Army Regulation (AR)
* SF 600, dated 5 December 2007
* SSA letter, dated 3 November 2010
* VA rating decision cover memorandum
* Department of Defense Directive (DODD) 10-022, dated 25 July 2010

4.  The remand was also accompanied by extracts of the applicant’s medical records totaling 187 pages which the ABCMR will consider.

CONSIDERATION OF EVIDENCE:

1.  Incorporated by reference are the record of prior proceedings by the ADRB (AR20070018958) and the ABCMR (AR20080020061, AR20090002009, AR20090020460, AR20090020462, and AR20100010693).

2.  The applicant's records show she initially enlisted in the U.S. Air Force on 29 May 1974 and had subsequent service in various armed services components.

3.  After service in the U.S. Naval Reserve, she enlisted in the Texas Army National Guard (TXARNG) in the rank/grade of SPC/E-4 on 19 March 1987 and held military occupational specialties (MOS) 91A (Medical Specialist) and 91B (Practical Nurse).  Her National Guard Bureau Form 22 (Report of Separation and Record of Service) shows she was discharged from the TXARNG on 1 February 1990 "without an actual notice due to her whereabouts being unknown."  Her service was characterized as general (under honorable conditions).  She was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete her service obligation.  Her records reflect a break of service from 19 March 1993 until 29 November 2004.

4.  She enlisted in the USAR in the rank/grade of private first class/E-3 on 30 November 2004.  She was advanced to SPC/E-4 on 12 February 2005.  

5.  On 4 November 2005, she entered active duty for training (ADT), completed advanced individual training, and was awarded MOS 91W (renamed 68W) (Health Care Specialist).  She was released from ADT on 20 March 2006 to the control of her USAR unit.  She was assigned to the 160th MP Battalion, Tallahassee, FL on 21 August 2006.

6.  On 8 October 2006, she was ordered to active duty as a member of her Reserve unit in support of Operation Enduring Freedom (OEF).  

7.  On 18 November 2006, she went on sick call at Fort Bliss, TX, for bronchitis, reactive airway disease, and exposure to pepper spray.  She received medication and was instructed not to conduct physical activity for 7 days, to train at her own pace, and not to have any airway irritants.

8.  On 23 December 2006, a flag was initiated against her for adverse action.  A copy of the DA Form 268 is not available for review with this case.  This flag appears to be subsequent to an incident that occurred at El Paso International Airport.

9.  On 8 January 2007, she arrived in Afghanistan with her unit, the 160th MP Battalion.

10.  On 11 January 2007, she went to the Combat Support Hospital at Bagram Airfield, Afghanistan, complaining of pain in her feet.  She was issued medication for the foot pain and lower back pain and released without limitations to duty.

11.  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.

12.  On 1 March 2007, by letter, an official at the DAIG informed her that her letter, dated 20 January 2007, wherein she alleged unresolved issues with her chain of command was received and referred to the IG of her command for appropriate action.  Neither her letter to the IG nor the response from her command IG are available for review with this case.

13.  On 26 March 2007, she reported to the Task Force (TF) clinic complaining of bilateral wrist pain and ankle pain.  She reported a history of arthritis.  The treating physician prescribed medication.  On 5 April 2007, after a follow up examination, she was placed on a temporary profile exempting her from running, jumping, rucking, or pushups for 4 weeks.  

14.  She provided a service medical record, dated 7 June 2007, which states, in pertinent part, that on 7 April 2007, she 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.

15.  On 14 April 2007, she submitted a self-authored memorandum requesting a transfer to the Army unit that was located at the Craig Joint Theater Hospital.  She stated that she was allergic to pepper spray which was frequently used and that she had already had two severe reactions to this spray.  Her commander disapproved her request.

16.  On 18 April 2007, she submitted another self-authored memorandum wherein she indicated that she was sprayed with OC (cayenne pepper spray) during the third week of March 2007 and that she reacted with severe wheezing. She required an inhaler for one week after the incident.  A witness endorsed this memorandum by stating she witnessed the applicant's reaction to the spray.

17.  Also on 18 April 2007, she was seen at the aid clinic for her reaction to the pepper spray.  The attending medic/physician indicated she had a mild wheezing 

and she responded well to medication.  Her lungs were clear but she was recommended for a transfer to an area where she would not be exposed to this spray.

18.  On 20 April 2007, she submitted a self-authored memorandum to her commander wherein she stated that she was severely allergic to pepper spray and that she had been exposed to this spray on two occasions.  She requested a line of duty investigation for each of her two incidents.  She also stated that in the event of death or disability, she or her representative would pursue legal action.  

19.  On 3 May 2007, by memorandum to the Director of Nursing, TF Medical, the TF Guardian Surgeon indicated that he discussed her case. She is an experienced nurse but could no longer stay at the BTIF (Bagram Theater Interment Facility) due to her allergy.  Her TF commander is willing to attach her to TF Medical for 2 weeks or so.  If her work is good, she would be attached for a longer period.  According to testimony at her discharge board, she was reassigned as a medic at TF Medical Intensive Care Unit from 3 – 31 May 2006.

20.  On 30 May 2007, she reported to the TF Medical clinic complaining of chest pain and also bilateral wrist pain.  She was diagnosed with shortness of breath, chest pain and recommended for further cardiac testing at the Landstuhl Regional Medical Center (LRMC), Germany.

21.  On 31 May 2007, after being transferred to the LRMC, she was seen for shortness of breath and chest pain. This record also states that she 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.  

22.  During June 2007, she underwent various tests and neurological evaluations for her breathing difficulties and her brain.  Her medical records show in pertinent part, that she 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 post concussive syndrome."  As stated earlier, she provided a service medical record, dated 7 June 2007, which states, in pertinent part, that on 7 April 2007, she 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 punctate non-enhancing areas of abnormal signal on GRE sequences throughout white matter of both hemispheres.  

23.  On 7 June 2007, a physician at the LRMC Neurology clinic diagnosed her with post concussion syndrome.  The imaging studies of her brain noted nonspecific abnormal findings for the skull and head.  The reported non-specific MRI findings most likely represented chronic small vessel ischemic changes (a condition associated with aging-related brain changes).  Her condition was assessed as a Grade 3 (the mildest concussive diagnosis) concussion with mild residual symptoms, but no neurological defects.  She was released without duty limitations with instructions to follow up with her primary care manager.  

24.  On 11 June 2007, she was examined at the LRMC Endocrinology clinic for subclinical hypothyroidism.  The physician diagnosed her with this condition, but indicated it was unlikely related to the medical conditions she first reported when she arrived at LRMC.  The physician recommended follow up lab tests in
6-8 weeks, noting her condition often resolved with thyroid hormone replacement therapy.  The applicant was released without limitations to duty.

25.  On 23 June 2007, the applicant was issued another temporary physical profile, effective until 10 September 2007, providing she should have no exposure to pepper spray.  The DA Form 3349 indicates she had a physical profile of 211111 and was fit to perform all tasks (run, sit ups, push-ups) associated with the Army Physical Fitness Test, healthy, without a medical condition that would prevent deployment, and able to perform tasks common to a Soldier.  

26.  The applicant returned to Bagram Airfield in late June 2007.  On 28 June 2007, LTC (Dr.) WAS issued her a profile for thyroiditis, GERD [gastroesophageal reflux disorder/disease], "DOE," and headaches.  The DA Form 3349 indicates that the applicant had a physical profile of 322212.  This form also indicates that the profile is permanent and the entry "Needs MEB/PEB [Physical Evaluation Board]" is circled.  The profile assigned her functional limitations related to carrying, walking, and no exposure to pepper spray.  She was ultimately cleared and returned to her unit.  Testimony and e-mails introduced at her discharge board further described this profile:

	a.  The applicant’s TF Medical Executive Officer testified about a conversation he had with LTC WAS.  In this conversation, LTC WAS stated the profile was intended to be for 30 days.  LTC WAS wrote the profile because she browbeat him for 45 minutes and he just wanted her out of his office and she clearly needed a medical board.

	b.  LTC WAS related in an e-mail that he dealt with the applicant on two occasions.  She appeared to be belligerent and demanding.  She seemed to have some type of psychiatric problem and demanded to have a profile that was too restrictive for someone in the Army deployed to Afghanistan.  He wrote the profile she wanted to satisfy her and prevent any further harassment.  

27.  On 4 July 2007, the TF command surgeon (COL RLR) met with the applicant to discuss her medical conditions in order to advise her command. He did not have her records from the LRMC and the applicant refused to share the records, stating she didn’t trust her unit.  She did show COL RLR a profile limiting her exposure to pepper spray and some other expired profiles.  The applicant stated she could not continue working in the CSH because it is .7 miles from her housing unit and she tired easily because of a thyroid condition.  COL RLR opined her thyroid condition should not prevent her from working a normal shift in an environment outside of the BTIF.

28.  On 15 July 2007, she was assigned to work as the Battalion mail room clerk.

29.  On 2 August 2007, after several attempts to work with the applicant’s profile concerning exposure to pepper spray, she was assigned to the arms room.  In a counseling session with her Battalion Commander and 1SG, she was informed she needed to provide copies of all of her current profiles within 48 hours or undergo a physical evaluation by a physician at the task force.  During the counseling session, the applicant claimed the assignment violated her profile.  However, she refused to tell the 1SG what aspects of her profile were being violated.  She was later counseled for insubordinate behavior for rolling her eyes when being addressed by the Battalion Commander and failing to exercise proper military courtesies (e.g. a salute) at the end of the meeting.  The Battalion Commander ordered her to undergo a physical examination.  

30.  On 3 August 2007, the applicant appeared at the appointment for her medical evaluation.  However, she refused to cooperate with the examining physician or provide any information.  In a later counseling, she was cited for her disrespectful demeanor during this evaluation.  

31.  On 8 August 2007, her immediate commander at the 160th MP Battalion finalized a DA Form 268, effective 8 August 2007, that removed the initial flag placed in her records.

32. On 31 August 2007, the applicant was counseled for failing to appear as directed to take her record Army Physical Fitness Test (APFT).  The counseling noted she was not on a current profile that would prevent her from taking the test. 

33.  On 14 and 18 September 2007, the applicant underwent follow up examinations for hypothyroidism at the LRMC Endocrinology Clinic.  She was released for duty without limitations.
34.  On 14 and 24 September 2007, the applicant underwent follow up examinations for headaches at the LRMC Neurology Clinic.  The physician attributed the headaches to vasoconstrictor withdrawal caused by the applicant’s resumed daily use of analgesic medications (despite education that these could be a likely source of headaches).  The physician initially recommended sending the applicant back to the United States for further treatment.  However, the unit informed the physician the applicant’s headaches could be treated in Afghanistan.  She was released without limitations to duty.

35.  On 24 September 2007, the senior Army Reserve Liaison Noncommissioned Officer (NCO) spoke with the applicant regarding a mental status evaluation that was ordered by the battalion commander.  After reading over the request and discussing it with the NCO, she elected not to sign the request or take the mental evaluation.

36.  On 27 September 2007, the applicant received an email from the physician at the Neurology Department, LRMC, Germany.  The medical officer stated that she had recommended the applicant return to the United States.  However, she acknowledged the applicant’s headaches could be managed by medical personnel in Afghanistan and that she had no strong position to say that the applicant absolutely could not go back to Afghanistan.  The medical officer added that she could not comment on any other medical issues aside from the applicant’s headaches as she was not involved in the treatment or evaluation.  

37.  On 2 October 2007, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14-12b, for misconduct - patterns of misconduct.  She had received an extensive history of counseling by various members of her chain of command for several infractions including: disrespectful language and deportment, failing to maintain proper military bearing, failing to obey orders, involvement in verbal confrontations with others, moving from her assigned living quarters in a combat zone without authorization or notification, refusing to work, failing to go at the time prescribed to her appointed place of duty, refusing to undergo a mental evaluation ordered by her battalion commander, refusing to give the battalion surgeon a package 

addressed to him, failing to report for the APFT, and multiple other instances of disrespect, insubordination, hostile tone and demeanor, lack of bearing, and unprofessionalism.

38.  On 3 October 2007, she 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 noted she was post menopausal.

39.  On 4 October 2007, she 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.   Also on 4 October 2007, the applicant consulted with counsel and requested consideration of her case by an administrative separation board.  She:

	a.  acknowledged she had been advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to her; 

	b.  elected consideration of her case by an administrative separation board, a personal appearance before an administrative separation board; and

	c.  acknowledged she understood she could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to her and also acknowledged she understood as a result of the issuance of a discharge under other than honorable conditions she could be ineligible for many or all benefits as a veteran under both Federal and State laws.

40.  On 10 October 2007, by memorandum through her battalion commander to the Commander, Combined Joint Task Force (CJTF) 82 - Bagram, the applicant complained against her chain of command as follows:

* she was exposed to pepper spray which caused her to have a severe reaction
* she was ordered by her chain of command to continue her mission
* she was twice sent to Germany for treatment but the battalion surgeon interfered and had her sent back to Afghanistan
* her chain of command constantly ignored her requests
* her commander ordered her back to Afghanistan against the doctor's recommendation in retaliation for her alleged misconduct
* 
she requested immediate return to the United States
* she requested an investigation of her chain of command for criminal negligence 

41.  On 15 November 2007, an administrative separation board convened at Bagram Airfield, Afghanistan, to determine if she should be retained in the Army. The board found the applicant committed misconduct consisting of discreditable conduct and conduct prejudicial to the good order and discipline.  Specifically, the applicant:

* engaged in a verbal confrontation with a noncommissioned officer (NCO) (a SGT) wherein the applicant raised her voice and stated "I was not talking to you" (1 November 2006)
* showed disrespect to a commissioned officer (a 1LT) by rolling her eyes and refusing to make eye contact when the officer attempted to speak to the applicant (9 November 2006)
* neglected to maintain military bearing while processing through the El Paso International Airport by making threats to TSA agents while in military uniform (23 December 2006)
* used disrespectful language towards a superior NCO by stating "you don’t know what you are talking about, you don’t live here" and by disobeying the NCO’s order to stand at ease (20 February 2007)
* exhibited disrespect to a superior NCO by throwing down a nail file and failing to assume the proper position of parade rest (21 February 2007)
* moved from her authorized living quarters in Afghanistan without authorization (3 to 31 May 2007)
* acted with disrespect toward a superior commissioned officer - her battalion commander - by failing to render a salute, rolling her eyes, and contemptuously turning and looking around while the commander was talking to her (2 August 2007)
* Showed disrespect to two superior commissioned officers (Majors) by rolling her eyes and saying to them during a medical appointment "didn’t agree to this; I don’t have to tell you anything; I don’t trust you; you’re not my doctor; you think what you want, but you’re wrong" (3 August 2007)
* Failed to obey a lawful command from her battalion commander to undergo a physical evaluation by the battalion surgeon (3 August 2007)
* Failed to go at the time prescribed to her appointed place of duty, being her mandatory Army Physical Fitness Testing (31 August 2007)
* Refused to undergo a mental health evaluation at LRMC ordered by her battalion commander (23 September 2007)
* 
Refused, while serving as the unit mail clerk, to give the battalion surgeon a package addressed to him after being ordered to do so, telling him he had no right to be involved in her medical treatment (29 September 2007)

42.  The administrative separation board found her undesirable for further retention in the military service and her rehabilitation was not deemed possible, and the board recommended her discharge with an under other than honorable conditions discharge.

43.  On 19 November 2007, the General Court-Martial Convening Authority, the Commander of the CJTF 82, Major General DMR, acting as the convening/separation authority, reviewed the findings and recommendations of the administrative separation board proceedings and approved them.  He ordered the applicant discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted grade [private (PV1)/E-1].

44.  She was transferred back to the United States on 1 December 2007 and she was discharged on 13 December 2007.  Her DD Form 214 shows she was discharged under the provisions of chapter 14 of Army Regulation 635-200, with an under other than honorable conditions discharge.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) show the entries PV1 and E-1.  Additionally, this form shows she was not transferred back to the USAR.  The form reflects she completed 1 year, 2 months, and 6 days of active service during the current period of service.  She had 7 months and 20 days of prior active service and
16 years, 6 months, and 13 days of prior inactive service.  

45.  An ARPC Form 249-E (Chronological Statement of Retirement Points), dated 22 July 2011, shows the applicant’s AFRES, USAF, USAR, USNR, and ARNG active and inactive service prior to 29 November 2005.  From 15 May 1974 until 29 November 2005, the applicant had a total of 4 years, 7 months, and 20 days of qualifying service towards a nonregular (reserve) retirement.  Adding the time spent on active duty prior to her discharge, she had approximately 6 years of qualifying service.  Twelve of her years in Reserve or ARNG service do not qualify towards a nonregular retirement due to insufficient participation.  

46.  On 15 February 2008, 3 months after her discharge, the 81st Regional Readiness Command (RRC) published its January 2008 Permanent Promotion Recommended List (PPRL).  The applicant's name was listed as eligible for promotion to SGT.  The PPRL point of contact directed subordinate commands to make corrections and adjustments and forward supporting documents to the 81st RRC.

47.  On 16 April 2008, by email from the 3220th Garrison Support Unit command sergeant major (CSM) to the 81st RRC, the CSM stated that the applicant was still showing on the promotion list and that she should not be promoted.  He elaborated that she was previously boarded and recommended for promotion to SGT in November 2006 but was flagged in December 2006 and remained flagged until a separation board discharged her in December 2007.  Her name should be removed from any PPRL.

48.  On 17 December 2008, the ADRB granted her partial relief in the form of an upgrade of her discharge to a general, under honorable conditions discharge on the basis that the characterization issued was too harsh in light of her overall length and quality of service, to include her deployment to Afghanistan.  The ADRB also directed correction of her separation authority, separation code, reentry eligibility code, and narrative reason for her separation.  Finally, the ADRB restored her former rank/grade of SPC/E-4.  Accordingly, her DD Form 214 was voided and she was issued a new form to reflect the changes.

49.  The ADRB's membership did not include as a member a medical doctor or psychiatrist.  

50.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconducts, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority (GCMCA) may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

51.  AR 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.

52.  AR 635-200, paragraph 1-19 (a) establishes the level of authority for approving or disapproving the separation of an enlisted member.  Except for 

Secretarial plenary authority; separation due to reduction in force, strength limitations, or budgetary constraints; the Qualitative Management Program; voluntary separation of Soldiers serving indefinite enlistments; conviction by a foreign court ; and the early release from active duty of Reserve Component (RC) personnel serving on Active Guard Reserve (AGR) tours under Title 10, U.S. Code (USC), section 12301(d), commanders who are general court-martial convening authorities (GCMCA) and their superior commanders are authorized to approve or disapprove separation per this regulation.  This includes the authority to convene administrative separation boards when required by this regulation. 

53.  AR 635-200, paragraph 2-12(c), provided “when board action is completed on a Soldier with over 18 years of service, the findings and recommendations of the board, with complete documentation and the recommendation of the convening authority, will be forwarded to Headquarters, Department of the Army (AHRC-EPR-F), 2461 Eisenhower Avenue, Alexandria, VA 22332-0478, for final determination when the convening authority recommends discharge.”  This paragraph does not define the term “service” or whether it includes active service/active Federal service, active status, or creditable service towards a nonregular retirement.   

54. The following definitions apply to military personnel covered under Title 10, USC:

* The term "active service" means service on active duty or full-time National Guard duty (10 USC 101 (d)(3)
* The term "active status" means the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve (10 USC 101 (d)(4))

55.  10 USC 12731 provides a member of the Army Reserve becomes entitled to nonregular retired pay at age 60 if the person performed 20 or more years of service computed under 10 USC 12732.  This is often referred to as creditable or qualifying service.  In pertinent part, a person’s creditable years of service towards retired pay under section 12731 are calculated by adding each one-year period, after 1 July 1949, in which the person has been credited with at least 50 points on the following basis: 

	a.  one point for each day of active service; or full-time service under  sections 316, 502, 503, 504, and 505 Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned; if that service conformed to required standards and qualifications. 

	b.  one point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned and conformed to the requirements prescribed by law, including attendance under section 502 of Title 32.

	c.  Points at the rate of 15 a year for membership in a reserve component of an armed force, in the Army or the Air Force without component, or in any other category covered by subsection (a)(1) except a 	regular component. 

	d.  Points credited for the year under section 2126b of this title. 

	e.  one point for each day on which funeral honors duty is performed for at least two hours under section 12503 of this title or section 115 of Title 32, unless the duty is performed while in a status for which credit is provided under another subparagraph of this paragraph. 

	f.  Service in the National Guard shall be treated as if it were service in a reserve component, if the person concerned was later appointed in the National Guard of the United States, the Army National Guard of the United States, the Air National Guard of the United States, or as a Reserve of the Army or the Air Force, and served continuously in the National Guard from the date of his Federal recognition to the date of that appointment. 

56.  Several Army regulations require higher-level approval for certain personnel actions – to include discharges for misconduct - for Soldiers with 18 or more but less than 20 years of active service or service creditable towards a non regular retirement.  Examples:

	a.  AR 635-200, within that regulation: Except when discharged pursuant to the approved sentence of a court-martial or for physical disability (AR 635-40), any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval at HQDA level.  These separation actions will be submitted to HQDA for forwarding to the proper authority (paragraph 1-19 (f)).  A Soldier with 18 or more years of active Federal service may not waive an administrative board hearing (paragraph 2-5(d)).

	b.  AR 135-178 (Enlisted Administrative Separations) provides guidance for administrative separations of ARNG and Army Reserve members who are not on active duty or otherwise governed by the provisions of AR 635-200.  Paragraph 1-11 of this regulation provides that a Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay under 10 USC 12732 will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.  All recommendations for involuntary separation of Soldiers in this category will be sent to HQDA (paragraph 1-12) for consideration.

57.  AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states that a flag will be initiated immediately when a Soldier’s status changes from favorable to unfavorable.  Several specific actions and investigations require a transferrable or non-transferable flag.  A transferrable flag is required when a Soldier fails to pass or fails to take the Army Physical Fitness Test (APFT).  This type of flag is lifted once the Soldier takes and passes the APFT.  In cases of adverse action, a flag is initiated if a member is pending elimination from the Army.  The flag is removed when the Soldier is reassigned to the transition center for separation.  A flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion.

58.  AR 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states that Soldiers (SPC through master sergeant (MSG)) are non-promotable to a higher grade when a Soldier is in proceedings that may result in an administrative elimination.  The failure to initiate a DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag under the provisions of AR 600-8-2.  A promotion is not valid and the promotion order will be revoked if the Soldier is not, or was not, in a promotable status on the effective date.  The unit commander must notify the promotion authority when a Soldier is in a non-promotable status.

59.  Paragraph 5-2 of AR 600-8-19 states the commander of the RRC is the regional promotion list manager for all USAR units, elements, and Soldiers located within his/her regional area of responsibility and operations.  The regional promotion list manager will review promotion selection board results and operations for administrative/procedural accuracy and compliance with established policy; incorporate Soldiers recommended by promotion boards onto the regional PPRL for all Soldiers residing within his/her regional area of responsibility; and add, update, and remove promotion list entries as necessary. Position vacancies are not required for promotion selection board consideration and placement on the PPRL.  However, promotion off the PPRL requires the existence of a position vacancy (non-waivable).

60.  Paragraph 5-18 of AR 600-8-19 states that a consolidated PPRL will be established, published, and maintained by the regional promotion list manager.  The regional promotion list manager will announce the suspense dates for receiving a copy of the report of board proceedings from the promotion authorities.  The reports will be consolidated into one permanent recommended promotion list.  The names of recommended Soldiers will be extracted from the reports and placed on the list according to a certain format described.  The list will be revised every 3 months (or as often as needed) to provide for integration on the list of new names resulting from the transfer into the command of personnel with list standing in an Army Reserve losing command and report of board proceedings received from subsequent promotion recommendation boards; adjustments to list standings based on reevaluations, re-computations, removals due to promotions off the list, losses from the command, flags, or failures to maintain minimum number of promotion points, or administrative corrections.

61.  Army Regulation 135-7 (Incentive Programs), paragraph 2-1.3a states "applicants must have received an honorable discharge at the conclusion of their last period of service to be eligible for a Prior Service Enlistment Bonus.  

62.  AR 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  It provides for MEBs, 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 AR 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

63.  AR 635-40, 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 or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

64.  AR 635-40, paragraph 4-3, 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.

65.  AR 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 Veteran's Affairs Schedule for Rating Disabilities (VASRD).  

66.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%; and section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

67.  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.

68.  DODI 1332.38, section E3.P3.4, 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.

69.  Chapter 7 (Physical Profiling) of AR 40-501 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.  

70.  Title 10, USC, section 1553 (Review of discharge and dismissal) establishes and governs discharge reviews conducted by the ADRB.  Section (d)(1) of this statute provides “In the case of a former member of the armed forces who, while serving on active duty as a member of the armed forces, was deployed in support of a contingency operation and who, at any time after such deployment, was diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing post-traumatic stress disorder or traumatic brain injury as a consequence of that deployment, a board established under this section to review the former member’s discharge or dismissal shall include a member who is a physician, clinical psychologist, or psychiatrist.”  This provision was added by the Fiscal Year 2010 National Defense Authorization Act (Public Law 111-84, Section 512(b)), enacted on 28 October 2009.

71.  Title 38, USC, sections 1110 through 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability 

ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The Court, in the remand, asked the ABCMR to determine whether:

* The applicant’s SPC/E-4 rank was proper.  Included in this issue are the questions whether the applicant:

* was entitled to a $15,000 PSEB upon her enlistment
* was wrongly denied promotion to SGT/E-5

* The Army appropriately processed the applicant through the military disability system while simultaneously undergoing administrative separation procedures 
* The Army properly discharged her in light of her service.  Included in this issue are the questions:

* did the proper authority approve her discharge from the Army
* was the ADRB properly composed

2.  The applicant’s highest grade held was E-4 and she was not entitled to a promotion to E-5.  

	a.  Her records do not contain a promotion recommendation/packet; nevertheless,  the evidence of record shows she was boarded and recommended for promotion to SGT/E-5 in November 2006.  She was flagged in December 2006 (a copy of the DA Form 268 is not available for review with this case) and she remained flagged until her commander removed the flag in August 2007.  Thereafter, she failed an APFT, which would have generated a flag until she passed the test.  

	b.  Prior to and during her deployment, she displayed a pattern of misconduct throughout her tenure with the 160th MP Battalion, starting with a letter of reprimand for the incident at the El Paso airport (which would have required the initiation of a flag) and culminating with the initiation of separation action against her (which would also have required the initiation of a flag).  Those flags would have placed her in a non-promotable status.

	c.  It is unclear if her chain of command initiated appropriate flags to suspend any favorable personnel action.  However, given the tactical environment, it is likely the paperwork may have been misplaced.  The 16 April 2008 email from the 3220th Garrison Support Unit indicates she did remain under a flag until her discharge.  Nevertheless, the failure to initiate a DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag.  In her case, a flag was required, first for her failure of the APFT in August 2007 and then when discharge proceedings were initiated.   She was ultimately ordered discharged from all components of the Army on 13 December 2007 and reduced to the lowest enlisted grade.  Since she had no further military status subsequent to her discharge, her name appears to have been erroneously incorporated into the January 2008 PPRL.

	d.  She performed in the rank/grade of SPC/E-4 during deployment.  There is no evidence she was eligible for or was promoted to SGT/E-5 or that a position vacancy (a requirement for promotion off the PPRL) existed.  Even if she had been eligible, given her non-promotable status, her orders would have been revoked.  Therefore, in view of the circumstances of this case, she is not entitled to a correction to show she was promoted to E-5.

   e.  On a related note, the applicant was not entitled to a PSEB.  By regulation, payment of this bonus requires that the Soldier received an honorable discharge from her prior period of service.  The applicant’s prior period of service in the TXARNG was characterized as general (under honorable conditions).  She didn’t qualify for a bonus.  

3.  The Army did not err in failing to provide the applicant an MEB/PEB in conjunction with her administrative separation.  

	a.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  

	b.  Her records show she was seen for multiple medical complaints amounting to issues she attributed to exposure to pepper spray and TBI.  She essentially contends that this issue was the cause of her problems and ultimate discharge for misconduct.  However, her misconduct started in January 2007 with the incident at El Paso airport, before her 7 April 2007 fall.  She requested to transfer out of the unit but her chain of command denied her request, possibly due to the tactical and manning situation at the time. 

   c.  The applicant’s medical conditions did not warrant processing under the PDES because she was fit to serve.

		(1)  Every physical profile she received – save for one – determined she was fit to continue duty.  Some included temporary limitations, which expired.  She also was limited from exposure to pepper spray, a limitation that the unit honored beginning in May 2007 by finding a position for her away from the pepper spray used in the internment facility. 

		(2)  Every examination conducted by specialists at LRMC – including those at the end of September 2007 – ended with the applicant’s return to duty with no limitations, except for exposure to pepper spray.  The e-mail and notations from the physician at the LRMC in September 2007 show the physician recommended the applicant’s return to the United States for follow on care.  However, the same physician made clear her condition (headaches) could be managed downrange and did not prevent the applicant from performing duties.  

		(3)  The profile issued on 28 June 2007 by LTC WAS did not entitle the applicant to processing under the PDES.  Although he recommended an MEB and gave her a profile rating of 322212, this profile was temporary.  Further: 

* LTC WAS had only seen the applicant on two occasions
* He issued the profile to give her what she wanted and to avoid harassment brought on by the applicant’s belligerent and demanding demeanor
* Later examinations for hypothyroidism and headaches performed by specialists at LRMC returned the applicant to duty without limitations, save for pepper spray exposure
* Profiles issued to the applicant after 28 June 2007 did not find her unfit or recommend an MEB
* Her separation physical conducted on 3 October 2007 reflected a physical profile of 111211, meaning she was fit and did not require processing by an MEB

	d.  The various medical documents she submitted and the medical records accompanying the Court’s remand do not show she failed to meet accession or 

retention standards.  In fact, there is insufficient evidence in her records that shows she was physically unfit at the time of her discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows she was fully able to perform the duties of her grade and fully qualified for separation.  Her conditions did not warrant processing under the PDES.

	e.  The nature of her misconduct (missing appointments, disrespect, insubordination, failing to report to her place of duty) had no relation to any medical conditions she now claims (allergy) and TBI and she presented no compelling evidence that other circumstances warranted disability processing in lieu of administrative separation.  She has not shown through the evidence submitted or the evidence of record that she was medically/physically unfit at the time of separation and she should have been processed for separation due to physical disability.

4.  The Army properly discharged the applicant for misconduct with an under other than honorable conditions discharge.

	a.  Prior to and during her deployment to Afghanistan, the applicant engaged in a pattern of misconduct.  Her chain of command properly exercised its discretion and authority to initiate discharge proceedings under AR 635-200.  

	b.  The applicant committed a series of offenses as outlined by the administrative separation board.  She received extensive counseling by her chain of command but she failed to respond positively.  Having failed to respond to counseling, her chain of command initiated separation action against her under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  MG DMR, a GCMCA and the separation authority, subsequently approved the board’s recommendation.  Further, her discharge accurately reflected her overall record of service.

	c.  The GCMCA did not have to forward this case to Headquarters, Department of the Army for final action even though the applicant, at the time of her discharge, had over 18 years since she began her service.  To trigger this higher level review, a Soldier must have 18 qualifying years for a retirement.

		(1)  AR 635-200, paragraph 2-12(c) is intended to add a layer of protection to Soldiers who are near eligibility for a regular retirement or a nonregular 

(Reserve) retirement.  This interpretation is borne out by other provisions in
AR 635-200 and AR 135-178 that elevate the approval level on certain actions for Soldiers nearing retirement.

		(2)  Although the applicant had been affiliated with the services for over 18 years, she was nowhere near eligibility for a regular or nonregular retirement.  In total, she had less than 3 years of time on active duty.  To qualify for a regular retirement a Soldier must serve 20 years on active duty.  She had less than 7 qualifying years toward a nonregular retirement.  

   d.  The decision by the ADRB did not invalidate her discharge.  That board found a proper basis for the applicant’s discharge for misconduct.  The board upgraded the applicant's character of service on the basis that an under other than honorable conditions discharge was overly harsh in light of the applicant’s total service.  This decision by the ADRB does not bind the ABCMR to granting a further correction or changing the applicant’s separation to a medical discharge.  

   e.  The applicant’s assertion that her ADRB was improperly composed because a physician/psychiatrist did not sit as a member is incorrect.  The provisions of 10 USC 1553 (d)(1) were not enacted until after the ADRB considered the applicant’s case.  
	f.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	g.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, she is not entitled to an honorable discharge.  The applicant has offered insufficient evidence in her many applications to the ABCMR and in her petition to the Court to warrant a further upgrade to an honorable discharge as a matter of law or equity.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.



      _________XXX__________
               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.


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ABCMR Record of Proceedings (cont)                                         AR20110012017



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