IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120004996 


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:

The applicant defers his request, statement, and evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records as follows:

* that his DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 11 July 2008 be voided
* reinstatement in an active duty status, effective 12 July 2008, for medical evaluation board (MEB)/physical evaluation board (PEB) processing
* entitlement to back pay and allowances due as a result of the reinstatement action
* restoration of his rank/grade of specialist (SPC)/E-4 effective 2 May 2008
* award of the Purple Heart for the concussion injury the applicant incurred in Iraq on 29 September 2007 during an improvised explosive device (IED) blast

2.  Counsel states:

	a.  The applicant suffers from multiple sclerosis (MS) and his first attack occurred on 6 September 2006 when he experienced the sudden onset of neurological symptoms.  He suffered numbness in his left hand, face, and tongue, and he was unable to see correctly through his left eye.  He was admitted to a German hospital for 10 days and was diagnosed with optic neuritis.  Radiologic studies showed central nervous system (CNS) lesions with no cerebrospinal fluid (CSF) inflammation and his doctor recommended a follow-up examination in 3 months.  On 17 October 2006, he experienced another attack and was again hospitalized.  The examining physician noted the applicant was experiencing significant left-sided weakness with facial weakness and a drooping mouth on the left side.  The physician's working assessment was probable stroke or transient ischemic attack (TIA) with the possibility of many other lesions including occult mass or demyelination disease.  After his release from the hospital, he was given a temporary 3 profile.  In January 2007, he was assigned to the Vilseck Law Center.  His superiors were pleased with his work and sought to have him reclassified as a paralegal and retained at the legal center.

	b.  Despite his medical condition, the applicant was deployed to Iraq in September 2007.  On 29 September 2007, he was conducting a dismounted foot patrol and was injured in an IED blast.  The blast and flying debris knocked him to the ground and injured his back.  He suffered a concussion from the blast and the casualty report noted that he suffered a mild traumatic brain injury (TBI).  Therefore, he meets the criteria for award of the Purple Heart. 

	c.  While deployed, he was constantly harassed by members of his unit.  He voiced his concerns to the first sergeant (1SG) about his medical issues and why he shouldn't be in Iraq.  On 10 October 2007, he fell unconscious at the Forward Operating Base (FOB) and remembers very little of the episode.  His weapon was found 20 feet from where he was found unconscious.  He was taken to the aid station for medical evaluation.  Incredibly, on 1 November 2007, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having wrongfully disposed of his weapon and was given 14 days of restriction and extra duty.  He did not appeal the Article 15 as he believed it would make matters worse for him.

	d.  Upon his return to Vilseck, Germany, from leave in the United States from 2 to 20 December 2007, he was informed he would redeploy to Iraq on 23 December 2007.  He informed the noncommissioned officer in charge (NCOIC) that he was continuing to experience neurological problems such as vision deficits and that he needed to see behavioral health for the depression he had been treated for in Iraq.  On 23 December 2007, he refused to board a van to take him to the airport for transport to Iraq.  His medical records, dated 26 December 2007, contain a note that stated behavioral health officers in Iraq had recommended the applicant return to the United States after the 29 September 2007 IED blast.  It also stated that downrange behavioral health officers understood he had performed well at the legal center and believed he would do better by remaining with that organization rather than redeploy to Iraq.

	e.  On or about 25 January 2008, the applicant collapsed in his room and was rushed to a civilian hospital.  On 31 January 2008, two Army lawyers went to his hospital room and told him court-martial charges were being preferred against him for missing movement to Iraq.  On the advice of his lawyer, he pled guilty at a special court-martial for missing movement and was sentenced to reduction to the rank/grade of private (PV1)/E-1 and confinement for 28 days.

	f.  The Army characterized the applicant's service as under other than honorable conditions.  On 9 October 2008, the Department of Veterans Affairs (VA) determined his service was honorable for the purposes of benefits and medical care.

	g.  The law required the Army to refer the applicant to an MEB no later than 13 October 2006, when he was diagnosed with optic nerve atrophy.  Civilian physicians in Germany diagnosed him with optic neuritis on 17 October 2006 which also required MEB processing in accordance with Army Regulation
40-501 (Standards of Medical Fitness).  This regulation establishes the medical standards for retention and criteria for the referral of Soldiers to an MEB, the first step in the Army Physical Disability Evaluation System (PDES).  Chapter 3 provides that atrophy of the optic nerve due to disease and the neurological conditions of MS and optic neuritis are cause for referral to an MEB.  Chapter 3 also states Soldiers who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB.  It further states that physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification.

	h.  Had the applicant been referred to an MEB in October 2006, he would not have been deployed to Iraq in September 2007 and would not have incurred court-martial charges in January 2008.  A closer medical examination through an MEB would have resulted in the diagnosis of MS which carries a minimum disability rating of 30 percent.  Therefore, he should have been medically retired and not thrown in jail.

	i.  The applicant's refusal to deploy on 23 December 2007 was legally justified as under UCMJ, a defense to the charge of disobeying an order is that the order conflicts with a military regulation (see United States versus Roach, enclosed).  The order for him to redeploy to Iraq was unlawful because it directly conflicted with Army Regulation 40-501.

3.  Counsel provides:

* the applicant's DD Form 214
* twenty nine pages of the applicant's medical records dated between dated 15 September 2006 and 27 December 2007
* Two Physical Profiles, dated 31 October 2006 and 31 January 2007
* five DD Forms 689 (Individual Sick Slip), dated between 30 September and 9 October 2007
* a Casualty Report, dated 1 October 2007
* three DA Forms 4856 (Developmental Counseling Form), dated between 12 October and 27 December 2007
* DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ)
* DD Form 458 (Charge Sheet)
* DD Form 4430 (Department of the Army Report of Result of Trial)
* DD Form 2707 (Confinement Order)
* a memorandum, dated 1 May 2008
* VA Administrative Decision, dated 9 October 2008
* three pages of Army Regulation 40-501
* one page of Army Regulation 600-8-22 (Military Awards)
* two pages titled Schedule of Ratings - Neurological Conditions and Convulsive Disorders
* five pages titled Multiple Sclerosis
* two pages titled Optic Neuritis
* two pages titled Optic Nerve Atrophy
* seven pages of a case summary from the United States Court of Military Appeals, dated 26 September 1989 
* a statement from the applicant, dated 28 February 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant's records show he enlisted in the Regular Army (RA) on 9 September 2004 and he held military occupational specialty 19D (Cavalry Scout).  He served in Iraq from 28 May to 28 September 2005.  He was promoted to the rank/grade of SPC/E-4 on 14 July 2006.  

3.  He reenlisted in the RA on 27 March 2006 for a period of 3 years.  He was assigned to the 3rd Squadron, 2nd Armored Cavalry Regiment, Vilseck, Germany on 9 August 2006.

4.  Counsel provides:

	a.  A German physician's statement, dated 15 September 2006, wherein Doctor WB stated the applicant had been treated in their inpatient facility between 6 and 13 September 2006.  At admission, the applicant stated he experienced an initial sensation of numbness in the fingers of his left hand that spread to the entire left hand and left side of the face.  The applicant also noted visual disturbances of the left eye and denied having had similar symptoms before.  The examining physician noted the applicant's head movement was free, there were no deficits of eye mobility, and his reflex status showed no pathological reflexes.  The coordination testing with goal-oriented coordination of gait and standing showed no pathological findings.  The physician's diagnosis noted he had a strong suspicion of past optical neuritis (left), and that there were currently no "CERTAIN" signs of a chronic CNS inflammation (encephalomyelitis disseminate).  He also stated based on the only discrete and non-specific lesions on the MRI of the head as well as lack of proof for inflammation of the CSF, the diagnosis could not be made definitively even with acute criteria.  He stated if the symptoms continued or new symptoms developed he recommended further follow-up with a repeat MRI of the head in 3 months.

	b.  A Standard Form 600 (Chronological Record of Medical Cared), dated 13 October 2006, wherein the applicant was seen at the Optometry Clinic, Vilseck, Germany.  The examining physician stated the applicant was seen for a complaint of decreased vision possibly due to a stroke between 9 and 15 September 2006.  Several tests were performed with no abnormalities noted.   He was diagnosed with optic atrophy, released with no limitations, to be followed-up. 

	c.  A German physcian's statement, dated 17 October 2006, wherein Doctor WB stated the applicant was examined on that date for a complaint that his previous vision disturbances of the left eye did not improve and he had tingling on his left upper extremity to include the left side of his face.  The physician stated, "there were no new diagnostic ideas and the best explanation for the applicant's symptoms was optic nerve neuritis.  Optic neuritis could be the beginning of a chronic inflammatory CNS disease but there was no further proof for this diagnosis (such as encephalomyelitis disseminate).  As already proposed, an MRI of the brain should be repeated in about 6 to 8 weeks and the applicant should not go to work for 2 to 3 weeks."

	d.  An unsigned medical note, dated 25 October 2006, wherein a physician assistant at the applicant's unit stated the applicant was seen on that day for complaints of parasethesia [tingling/burning of the skin] and weakness on the left side of the face.  He was escorted by a lieutenant who stated the applicant had looked "pale and sick."  He further stated the applicant had a prior incident with a working diagnosis of "TIA?" but the MRI did not produce results.  The applicant was transported to the local German hospital.

	e.  A German physician's statement, dated 30 October 2006, wherein Doctor AS stated the applicant was treated in September 2006 and was again hospitalized because of continuing sensory distortion of the left arm/impaired vision on the left eye.  Despite numerous (partly repeating) examinations they found no cogent reason for the applicant's symptoms; he recommended the applicant not return to work for 30 days.

	f.  A DA Form 3495, dated 31 October 2006, wherein the applicant was given a temporary profile of "3" on that date for hearing-ears and visual-eyes for a possible mini-stroke.  The profile stated the applicant should not run, jump, road march, or carry more than 10 pounds and limited him to desk work for no longer than 8 hours a day.  It did not prevent him from stretching or walking at his own pace and expired on 31 January 2007.  

	g.  A DA Form 3495, dated 31 January 2007, wherein his temporary profile was extended until 30 April 2007.  The profile stated the applicant was scheduled for a follow-up MRI in January 2007, and had ophthalmology and neurology appointments in January and February 2007 respectively. 

5.  The applicant's available record does not contain any documentation that shows his profile was extended past 30 April 2007, that he was ever given a permanent profile, or that he was subsequently diagnosed with any medical issues/disorders that prevented him from fully performing his military duties.

6.  On 8 August 2007, the applicant deployed with his unit to Iraq.

7.  On 29 September 2007, the applicant was in the vicinity of an IED explosion set off by hostile forces and was treated at the unit aid station for a grade 2 concussion.  On 2 October 2007, the examining physician diagnosed him with post-concussive syndrome and he was given a temporary profile from official duties to 6 October 2007.  The applicant's counsel provides a casualty report, dated 17 September 2010, wherein it was stated the applicant sustained a mild TBI as a result of the IED explosion on 29 September 2007.

8.  On 10 October 2007, the applicant was found unconscious at the FOB, Iraq, without his military weapon.  His 1SG sent several Soldiers to search for the weapon and it was subsequently located, with all attachments to include the sling attached to it, about 20 feet away from the area where the applicant had been found.

9.  A DA Form 4856, dated 12 October 2007, shows the applicant was counseled by his 1SG on that date for insubordinate conduct.  The 1SG stated that after numerous attempts to give him a job to perform, he always came up with reasons why he couldn't perform his duties and when the 1SG counseled him [on his duty performance], his response to the 1SG was very disrespectful.  The 1SG further stated that if the applicant had a legitimate complaint that would be addressed but the applicant needed to understand the use of tact when talking to NCOs and officers.  He could not be disrespectful just because he did not agree with what was being discussed.  He also informed the applicant that continued conduct of that nature could result in the applicant being recommended for administrative action such as a bar to reenlistment, separation from active duty, or UCMJ action.  The applicant checked the block on the form to indicate he agreed with the counseling and he placed his signature in the appropriate block.

10.  On 1 November 2007, the applicant received NJP under the provisions of Article 15, UCMJ, for wrongfully disposing of his weapon through neglect by leaving it laying on the ground, unsecured and unattended, on 10 October 2007.  The punishment imposed was 14 days of restriction and extra duty.

11.  He departed Iraq in a leave status from on or about 2 to 19 December 2007; he returned to Vilseck, Germany, on 20 December 2007.  He was scheduled to redeploy to Iraq on 23 December 2007.

12.  On 22 December 2007, the applicant told an NCO that he would use his British passport to seek asylum [instead of redeploying to Iraq].  The applicant further stated that he had already contacted the British consulate and was told they would provide asylum for him if he were to be arrested for refusing to redeploy.

13.  On 23 December 2007, an NCO woke the applicant up so he could leave for the airport.  He told the NCO that he was not going.  The NCO attempted to wake him up two more times; however, he continued to refuse to get up.  The NCO reported the incident to the staff duty NCO.
14.  On 24 December 2007, the applicant spoke to the manager and an employee of the Burger King on Post.  He told them both that he could not go home because he and his wife were having problems as she had been having an affair.  He further stated he refused to "go back down range" and that is why people throw grenades in tents.  If he had to go down range, he would take his gear off and walk to the British embassy.  The manager stated he didn't think the applicant was a threat to others, but maybe he was a threat to himself.

15.  On 26 December 2007, the applicant was seen at the Vilseck military hospital for an evaluation for deployment because he did not want to be sent back to Iraq.  The applicant told the examining physician that he was experiencing anxiety, depression, had family problems, and had been unable to see his children.  Recently, his wife had called his unit and complained that he was threatening her and he was written up for this.  He stated mental health services in theater did not want him to return until he was evaluated.  He further stated he had stroke-like symptoms in 2006 but nothing was ever determined and he felt he needed an appointment with a neurologist.  He was scheduled for an appointment with a psychiatrist after which it would be determined if he needed additional medical care.  There is no evidence in the available record that shows he required additional medical care or that he fell unconscious in January 2008 and was hospitalized as a result.

16.  On 31 January 2008, court-martial charges were preferred against him for missing movement by design on 23 December 2007.

17.  On 10 March 2008, he was ordered by the rear detachment commander to have no contact with his family for 72 hours, due to being removed from his home by the military police.  He was advised that continued conduct of that nature could result in him being recommended for administrative action such as a bar to reenlistment, separation from active duty, or UCMJ action.

18.  On 11 March 2008, he was counseled by the rear detachment NCO in charge (NCOIC) that due to being a flight risk, based on his actions of 3 and 4 Mach 2008 in regard to going to Paris, France, he was to report to the staff duty desk at 2300 each day and at 3-hour intervals until he was released from duty.

19.  On 2 May 2008, he was convicted by a summary court-martial of one specification of missing movement by design on 23 December 2007.  He was sentenced to reduction to private/E-1 and 28 days of confinement.


20.  On 30 May 2008, the applicant underwent a mental status evaluation at Vilseck Mental Health Clinic, Germany.  The examining psychologist stated the applicant's behavior was normal, his thinking process was clear, his thought content was normal and there was no evidence of a psychiatric condition which would prevent him from participating in any legal or administrative actions.  He further stated the applicant did not have a psychiatric condition that warranted disposition through medical channels, he met the retention requirements of Army Regulation 40-501, and did not require an MEB.  He cleared the applicant for any administrative action the command deemed appropriate

21.  On 12 June 2008, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the commission of a serious offense.  Specifically, he cited the applicant's having wrongfully disposed of military property, missing movement by design, and disobeying orders on several occasions.  The commander stated he was recommending a discharge under other than honorable conditions.

22.  On 12 June 2008, the applicant acknowledged receipt of the commander's proposed separation action.  He further acknowledged that he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He waived his rights to consult with military counsel and to have his case heard by an administrative separation board.  He also declined to submit a statement on his own behalf.

23.  On 12 and 18 June 2008, respectively, his intermediate and senior commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

24.  On 3 July 2008, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions characterization of service.  On 11 July 2008, he was discharged accordingly.

25.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - (serious offense) with an under other than honorable conditions characterization of service.  He completed 3 years, 10 months, and 3 days of net active service.  Although he had time lost due to confinement, it is not listed on his DD Form 214.

26.  His DD Form 214 does not show award of the Purple Heart.

27.  On 22 June 2010, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  The ADRB found he had been properly and equitable discharged, and there were no mitigating factors that would merit a medical discharge.  

28.  Counsel also provides:

	a.  An administrative decision, dated 9 October 2008, issued by the VA Regional Office, Detroit, MI, wherein a Veteran service representative determined the applicant's service for the period 9 September 2004 through 11 July 2008 was considered honorable for VA purposes.

	b.  Medical notes, dated 27 February 2009, wherein it indicated the applicant was seen on 26 February 2009 by Doctor PP for a neurology evaluation.  This form does not indicate the facility where the evaluation took place.  The examining physician noted the applicant's chief complaint as the "weakness of the left upper extremity and poor vision involving the left eye since September 2006."

	c.  The patient history portion of the medical notes, in pertinent part, noted the applicant had stated that in September 2006, he developed blurred vision in his left eye and weakness in his left upper extremities during a physical training run when he lost consciousness and fell to the ground.  However, this contradicts documentation the applicant provided that shows he was treated in September 2006 when he noticed an initial sensation of numbness in the fingers of his left hand that spread to the entire left hand and left side of the face.  There is no evidence in the available record that shows he ever lost consciousness in September 2006. 

	d.  Doctor PP diagnosed the applicant with secondary progressive MS since an initial attack in September to October 2006 that was manifested by left optic neuritis and cerebral lesions with mild paresis and sensory deficits involving the left upper extremity.  He suffered from chronic musculoskeletal lumbosacral back pain since July 2005.  The applicant alleged he was assaulted by NCOs in Iraq. He was punched in the stomach, his upper extremities were bound by duct tape, and he fell down palace stairs.  The applicant was also suffering from chronic post-traumatic headaches (muscle tension type) since September 2007 after he was exposed to an IED in Iraq.

	e.  Doctor PP stated he reviewed the applicant's Army and VA medical records and can state with 100 percent certainty the applicant suffered an attack of MS in September to October 2006.

29.  Army Regulation 600-8-22 states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  An example of enemy-related injuries which clearly justify award of the Purple Heart includes concussion injuries caused as a result of enemy-generated explosions.

30.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states an MEB is 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

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

32.  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 physical evaluation board if the general court-martial convening authority (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.


33.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Upon determination that a member is to be separated with a discharge certificate under other than honorable conditions, the approving authority will direct reduction to the lowest enlisted grade.

34.  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.

35.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

36.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was involved in an IED explosion in Iraq on 29 September 2007 and he was treated for a concussion as a result of the explosion on 30 September 2007.  Therefore, he is entitled to award of the Purple Heart and correction of his DD Form 214 to show this award.

2.  With respect to the applicant's contention that he should have been referred to an MEB/PEB, the evidence of record confirms he was never issued a permanent "3" profile, and he was never diagnosed with any medical issue/disorder that required referral to an MEB/PEB during his active duty service.  

3.  Notwithstanding his doctor's statement in February 2009, there is no evidence that shows the applicant was diagnosed with optic neuritis or MS while he was on active duty.  The evidence of record confirms, and the applicant provided, medical documentation that verifies that in September and October 2006 his examining physicians noted there was a strong suspicion of past optical neuritis (left) but there were no certain signs of chronic CNS inflammation, so the diagnosis could not be made definitively; his complaint of decreased vision was possibly due to a stroke but several tests were performed with no abnormalities noted, and the best explanation for the applicant's symptoms was optic nerve neuritis.  Optic neuritis could be the beginning of a chronic inflammatory CNS disease but there was no further proof for this diagnosis.  None of his physicians ever noted that MS might be a cause of the medical issues he experienced at that time.

4.  Further, the reason for his separation (misconduct) was not related to any medical conditions he may have been diagnosed with and there were no other compelling reasons for the GCMCA to initiate the PDES process.  However, even if the GCMCA failed to make a determination regarding the applicant's PDES processing, this error would have been harmless because the applicant presented no compelling evidence that circumstances warranted disability processing over administrative separation.

5.  There is no evidence in his available record, and the applicant did not provide any evidence, that shows his temporary profile was extended past 30 April 2007, or that after that date he was diagnosed with or treated for any medical issues/disorders that prevented him from performing his military duties and might have required his referral to an MEB/PEB in 2007.  Therefore, he was properly deployed with his unit to Iraq in August 2007.

6.  The loss of a weapon in a combat zone is a serious offense that can have dire consequences, which is why Soldiers in combat zones are directed to carry their weapons with the sling across their body at all times.  If a Soldier was to become incapacitated, the weapon would remain safely with the Soldier.  The evidence of record confirms the applicant was negligent and did not carry his weapon with the sling over his body, as evidenced by his being found unconscious at the FOB in Iraq without his weapon nearby.  Therefore, he properly received NJP for wrongfully disposing of his weapon through neglect by leaving it laying on the ground, unsecured and unattended.  

7.  The evidence of record does not show and the applicant did not provide any evidence that shows the order to redeploy to Iraq on 23 December 2007 was an unlawful order.  There is no evidence that he had any medical issues that prevented his redeployment, or that he ever told his NCOIC that he could not redeploy because he was too sick to do so.  Rather, the evidence of record confirms the applicant told another Soldier that he would seek asylum rather than redeploy, refused to get up for transport to the airport for redeployment, and he told personnel in an on-post facility that he refused to "go back down range" and if he had to go, he would take his gear off and walk to the British embassy.  In addition, it was not until after this occurred that he went to a medical treatment facility and requested an evaluation for deployment because he did not want to be sent back to Iraq.  

8.  With respect to the restoration of his rank to SPC effective 2 May 2008, the evidence of record shows the applicant was convicted by a summary court-martial of missing movement by design and as a result he was sentenced to reduction to PV1 and confinement for 28 days.  The sentence he received appears to be appropriate in this case.  In addition, his service was characterized as under other than honorable conditions.  Even if he had been serving in a higher rank at the time of discharge he would have been reduced to PV1 prior to his discharge in accordance with the applicable regulation. 

9.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for wrongfully disposing of his weapon through neglect, his court-martial conviction for missing movement, and disobeying orders on several occasions.  Accordingly, his immediate commander initiated separation action against him.

10.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

11.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

12.  A decision rendered by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the characterization of a Soldier's active duty service.  The VA may make administrative determinations for VA purposes only.

13.  In view of the foregoing, he is not entitled to have his DD Form 214 voided, reinstatement to active duty to undergo MEB/PEB processing, restoration of his rank to SPC, or any additional pay.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

   a.  awarding him the Purple Heart for injuries received in action in Iraq on 29 September 2007; and
   
b.  adding to his DD Form 214 the Purple Heart.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to voiding his DD Form 214, reinstating him to active duty to undergo MEB/PEB processing, restoration of his rank to SPC, or any additional pay.



      _______ _   __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)                                         AR20120004996



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ABCMR Record of Proceedings (cont)                                         AR20120004996



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