IN THE CASE OF:	 

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120009550 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the following:

	a.  removal of documents related to the following incidents from her record:

* Article 15 for assault
* documents relating to her making a false statement on 1 and 4 January 2004
* documents stating that she failed to abide by a general order on
31 December 2003 and 1 January 2004
* chapter 14 discharge for misconduct
* documents relating to a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigation

	b.  correction of her record by adding:

* A rehabilitative transfer to chapter 14 paperwork 
* Medical records to her out-processing documents and changing the dates on her final paperwork
* All information that has changed in her master file in the Department of Defense database and forwarding it to the Department of Veterans Affairs (VA)



	c.  modification to the following documents in her record:

* Traumatic Brain Injury (TBI) sustained in June and December 2003
* Post-Traumatic Stress Disorder (PTSD) related to combat 
* Rape
* Complex PTSD
* Complex partial seizures

d.  compensation deemed appropriate.

2.  The applicant states, in effect, she is unaware of what type of compensation she may be able to seek based on her issues but she believes she is due compensation.  She claims in 2003 she was working and remembers something blowing up and her medical records indicate she received a TBI but little was known of these injuries at the time.  She further indicates her command failed to take her TBI into account when she was court-martialed for pulling her weapon on another Soldier.  She further states she has an electronic mail (e-mail) message from a command sergeant major (CSM) who states she was mistreated by her command.  

3.  The applicant further states there were errors made in her investigation and that she has been denied VA including health care from the VA because her conditions are not service connected.  

4.  The applicant provides the documents identified in the "Supporting Document Information" portion of her application in support of her request.  

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.  On 7 May 2002, the applicant enlisted in the Regular Army and was trained in and awarded military occupational specialty (MOS) 92G (Food Service Specialist).  Her record documents no acts of valor or significant achievement.  She was advanced to private first class (PFC)/E-3 on 9 May 2003 and this is the highest rank she attained while serving on active duty.  

3.  On 1 October 2003, the applicant underwent a separation medical examination.  In the DD Form 2807-1 (Report of Medical History) completed by the applicant at the time, she indicated she was in good health and had no medical profiles.  The DD Form 2808 (Report of Medical Examination) shows she had a normal neurologic and psychiatric evaluation.  The examining physician assigned a 111111 physical profile and found the applicant fully qualified for service/separation.  

4.  On 20 January 2004, the unit commander notified the applicant action was being initiated to separate her under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations) for misconduct.  The unit commander cited the applicant’s receipt of a field grade Article 15 for disobeying a lawful order and for assault based on her pointing a loaded weapon at another Soldier.  The unit commander also indicated the applicant was counseled for communicating a threat to another Soldier, for failure to report her whereabouts, making a false statement under oath, and wrongfully consuming alcohol in the U.S. Central Command area of responsibility.  

5.  On 21 January 2004, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the right to waive of her rights.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which she elected not to submit a statement in her own behalf.  

6.  The approved separation action is not included in the available record.  However, the available record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was separated on 31 January 2004 under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct.  It also shows the applicant’s service was characterized as “Under Honorable Conditions" with issuance of a General Discharge Certificate.  

7.  The record is void of the Article 15 and medical treatment records the applicant referred to.  There is no evidence in the available record that indicates the applicant was suffering from a disabling medical condition that would have 


supported her separation processing through medical channels at the time of discharge.  

8.  On 30 September 2005, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was improper based on the use of the board proceedings memorandum by the unit commander to notify the applicant of the separation action.  The ADRB concluded that the use of this memorandum required the separation authority to be the general court-martial (GCM) convening authority.  The ADRB noted that someone other the GCM convening authority approved the discharge.  Based on its findings and conclusions, the ADRB voted to upgrade the applicant’s discharge to "honorable" and the separation authority and reason to paragraph 5-3, Army Regulation 635-200, by reason of "Secretarial Authority," and a new DD Form 214 was issued.  

9.  The applicant provides letters from the CID, Director, Crime Records Center, dated 10 and 30 June 2011.  These letters indicate the applicant's request to amend the CID Report of Investigation (ROI) was partially granted, and that a supplemental report was completed.  The supplemental ROI indicated that after a thorough review of the investigation it was determined the offense of false swearing was not committed as previously depicted in the final report.  It confirmed the offense of false swearing was unfounded.  The supplemental did not change the finding of the original final report that indicated the offense of rape and forcible sodomy did not occur as initially alleged.

10.  Department of Defense Instructions 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred."

	a.  Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security 


purposes.  Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys.

	b.  Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence.  The criteria for titling are a determination credible information exists that a person:

* may have committed a criminal offense, or
* is otherwise made the object of a criminal investigation

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

12.  Paragraph 3-1 of the disability regulation outlines the standards of unfitness because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

13.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for removal of several documents from her record, the modification of other documents, and appropriate compensation has been carefully considered.  However, there is insufficient evidence to support her requests.  

2.  There is no documentary evidence available related to the issues raised by the applicant.  However, the available evidence does clearly show the applicant was discharged for misconduct.  The record shows the ADRB elected to upgrade the applicant’s discharge based on it being improper due to a technicality that the unit commander used the wrong notification memorandum.  There is no evidence indicating the applicant did not commit the misconduct that led to her discharge or that her discharge would have been different had the error not occurred.  

3.  Further, there is no medical evidence of record indicating the applicant was suffering from a physically or mentally disqualifying medical condition at the time of discharge that would have supported her separation processing through medical channels.  If the applicant believes she has a service-connected condition that would support compensation she should pursue her claim through the VA, which is the agency responsible to provide medical care and compensation for service connected conditions that were not disqualifying for further service at the time of discharge.  

4.  In addition, it appears the applicant has been afforded the appropriate relief regarding her CID ROI through the proper appellate process which resulted in a supplemental amended ROI being published that corrected the finding of false swearing.  Absent any evidence of error or injustice in the amended supplemental report, there is an insufficient evidentiary basis for further amendment of the ROI.

5.  The applicant has failed to provide any compelling evidence to support correction of the record in any of the areas requested.  As a result, there is an insufficient evidentiary basis to support granting any of the 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.



      _______ _  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)                                         AR20120009550



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ABCMR Record of Proceedings (cont)                                         AR20120009550



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