IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20120020055 


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:

	a.  the narrative reason for his separation be changed to medical (disability);

	b.  an upgrade of his general discharge to an honorable discharge;

	c.  severance or retirement pay related to the change of reason; and

	d.  benefits and entitlements related to the upgrade.

2.  He states:

	a.  in accordance with Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 1-33, a medical evaluation board (MEB) takes precedence over a chapter 14 (Misconduct) separation until the results of the MEB are available;

	b.  the U.S. Court of Appeals, D.C. Circuit Number 10-5350, Coburn versus McHugh, is parallel to the facts of his case;

	c.  the Army failed to abide by Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-200; and

	d.  an Army Discharge Review Board (ADRB) analyst found "several mitigating factors that would merit an upgrade of his character of service to fully honorable."

3.  He provides:

* two self-authored statements
* two pages of Standard Forms (SF) 600 (Medical Records)
* two DD Forms 689 (Individual Sick Slip)
* two DA Forms 3349 (Physical Profile)
* twelve DA Forms 4856 (Development Counseling Form)
* two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* two memoranda from his Trial Defense Counsel, subject:  Company Grade Article 15 pertaining to the applicant, dated 25 March 2008; and Field Grade Article 15 pertaining to the applicant, dated 10 June 2008
* his separation packet
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his Bonus Recoupment worksheet
* his ADRB Record of Proceedings
* page 2 of his Department of Veterans Affairs (VA) Rating Decision

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board:

* upgrade the applicant's discharge
* change the narrative reason of his discharge from misconduct to medical
* award the applicant bonus money that has been recouped
* award the applicant any pay, allowances, and entitlements resulting from the change of the narrative reason for his discharge 

2.  Counsel submitted an 11-page brief wherein he essentially states:

	a.  the applicant's discharge was inequitable and improper because of failure to correct due to the process described in at least three Army regulations;

	b.  the recoupment of bonus money was inequitable because the applicant was denied due process that resulted in substantial prejudice; and

	c.  the remedy for the denial of due process is to upgrade the applicant's characterization of service to honorable and change the narrative reason for his discharge to medical.

3.  Counsel did not submit any additional supporting documents.

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 enlisted in the Regular Army on 31 July 2003.  His enlistment contract shows he was entitled to a $17,500.00 bonus.  However, the bonus was subject to recoupment in the event he failed to complete the full period of service.

3.  The applicant submitted:

	a.  two pages of SF 600, dated 17 October 2007, that show he underwent follow-up treatment after being evaluated for sleep apnea with sleep study.

	b.  two DA Forms 3349, dated:

		(1)  17 October 2007, that shows he was issued a temporary P-3 (physical capacity or stamina) profile due to obstructive sleep apnea; and

		(2)  11 January 2008, that shows the profiling officer issued him a permanent P-2 profile for sleep apnea that did not require appearance before an MEB or physical evaluation board (PEB).

	c.  two DA Forms 689, dated 10 May 2007 and 21 May 2008, respectively, that show it was recommended he go to mental health and noted that the pills he takes to sleep may make him late for formation.

	d.  twelve DA Forms 4856, dated from 28 January 2008 to 9 July 2008, for disobeying lawful orders, nonselection for promotion, making false statements to noncommissioned officers, and failing to follow instructions;

	e.  two DA Forms 2627 showing he accepted nonjudicial punishment under the provisions of Article 15 on:

		(1)  26 May 2008 for failing to go to at the prescribed time to his appointed place of duty on three occasions.  He did not appeal the Article 15.

		(2)  12 June 2008 for failing to go to at the prescribed time to his appointed place of duty, wrongfully communicating a threat on two occasions, and making a false statement with intent to deceive.  He appealed this Article 15; however, his appeal was denied.

	f.  two memoranda, from the U.S. Army Trial Defense Service (TDS), Europe, dated 25 March 2008 and 10 June 2008, respectively, that show he appealed the Article 15s.  TDS stated the applicant indicated he had been diagnosed with sleep apnea, a serious condition that resulted in him being non-deployable and would result in him being reclassified.  He states this condition interferes with his ability to sleep and the medication occasionally makes him oversleep.  He finally states he has been placed on a machine (continuous positive airway pressure (CPAP)) to regulate his breathing and this treatment will last for a year.

4.  On 11 August 2008:

	a.  he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 14-12b, due to patterns of misconduct.

	b.  he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.

	c.  the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14-12b, due to wrongfully communicating a threat, failing to report on numerous occasions, disobeying lawful orders and/or instructions several times, and having been caught lying to members of his chain of command numerous times.

5.  On 4 September 2008, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct.  He directed the applicant be furnished a general discharge.

6.  On 23 September 2008, the applicant was discharged accordingly.  He completed 5 years, 1 month, and 23 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b with service characterized as under honorable conditions (general).  He was assigned a separation code of JKA and a narrative reason of separation as pattern of misconduct.

7.  On 25 August 2010, the ADRB reviewed all the evidence and "mitigating" factors of the applicant's discharge and denied his request in its entirety for an upgrade of his discharge.

8.  The applicant submitted a Bonus Recoupment document that shows:

* he had an obligated service commitment of 1440 days
* his bonus entitlement was for 960 days
* he had 570 unserved obligated days
* the bonus recoupment in the amount of $10,390.63 was based on the 570 days

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, conviction by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 1-33 provides when the medical treatment facility commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 14 does not meet the medical fitness standards for retention under the provisions of Army Regulation 40-501, he/she will refer the Soldier to an MEB in accordance with Army Regulation 40-400 (Patient Administration).  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-marital convening authority (GCMCA) over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

	c.  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.

10.  Army Regulation 40-501 (Standards of Medical Fitness) paragraph 3-41c provides that obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, nasal CPAP, surgery, or an oral appliance is a cause for referral to a MEB if:

	a.  a 12-month trial of therapy with nasal CPAP may be attempted to assist with other therapeutic interventions, during which time the individual will be issued a temporary profile.  Soldiers with severe sleep apnea and/or symptoms may be referred directly for an MEB.  If nasal CPAP is required for longer than 12 months, the Soldiers should be profiled as a permanent P-2; and

	b.  if symptoms of hypersomnolence or snoring cannot be controlled with medical therapy, nasal CPAP, surgery or an oral appliance, the individual should be referred for a MEB.  If the use of nasal CPAP or other therapies for sleep apneas result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor, the Soldier should be referred to an MEB.

11.  Army Regulation 40-501 further provides that the physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  Paragraph 7-3d states:

	a.  An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness.

	b.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.

	c.  A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations.  The individual should receive assignments commensurate with his or her physical capability for military duty.

	d.  A profile serial containing one or more numerical designators of "4" indicates the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.

12.  Army Regulation 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.  Paragraph 4-3 provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision that authorizes a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded, his narrative reason for separation should be changed to medical, his bonus reinstated, and that he should be entitled to his retirement benefits was found to be insufficient in merit.

2.  There is no evidence of record and the applicant failed to provide any evidence that shows his medical condition warranted consideration by an MEB or a PEB.  Evidence of record shows the applicant underwent a sleep study and he was issued a permanent P-2 profile for his sleep apnea.  He was also undergoing treatment with use of nasal CPAP or other therapies for sleep apneas that did not warrant an MEB or a PEB.

3.  The evidence of record shows he was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was discharged due to pattern of misconduct for wrongfully communicating a threat, failing to report numerous times, disobeying lawful orders and/or instructions several times, and having been caught lying to members of his chain of command numerous times. 

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  The evidence shows that as a result of the applicant's discharge, he failed to complete his obligated service commitment and incurred a $10,390.00 debt due to overpayment of his bonus.  In view of the fact that his service was terminated as a result of his own misconduct, he is not entitled to the unearned portion of his bonus.

6.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

7.  In view of the foregoing, there is insufficient evidentiary 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 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)                                         AR20120020055



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ABCMR Record of Proceedings (cont)                                         AR20120020055



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