IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002401 


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 her under other than honorable conditions discharge be changed to show she was medically retired.  

2.  The applicant states her discharge should be changed to a medical retirement because [at the time of her discharge] she was under retaliation because of a sexual harassment claim and an allegation of wrongdoing that she reported.  She had severe mental problems that the military refused to treat because she was a whistleblower.

3.  The applicant provides 343 pages of Department of Veterans Affairs (VA) medical records, dated between 25 February 2008 and 11 January 2013.  Five of the pages are titled Radiology Reports and the rest are titled Progress Notes.

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 27 December 1985 and she held military occupational specialty 91W (Health Care Specialist).  She attained the rank/grade of sergeant first class (SFC)/E-7 on 1 February 1998 and she was assigned to the U.S. Army Medical Department Activity (USAMEDDAC), Fort George G. Meade, MD.

3.  On 20 April 2002, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* one specification of disobeying a lawful order
* five specifications of failing to report to her appointed place of duty at the prescribed time

4.  A memorandum of reprimand (MOR), dated 15 May 2002, is filed in the performance section of the applicant’s Army Military Human Resource Record (AMHRR).  The MOR was issued by the USAMEDDAC commander and in the MOR, her commander stated:

   a.  She was being reprimanded for failing to obey a direct order issued by the first sergeant (1SG) on two separate occasions and for failing to report to her appointed place of duty on five separate occasions.  This willful misconduct was unbecoming of a senior noncommissioned officer (NCO) and her failure to report showed a lack of discipline and set a poor example for those Soldiers entrusted to her leadership.  
   
   b.  As a senior NCO and platoon sergeant, it was imperative to lead by example and she had failed to do so.  Her inability to conform to the Army standards brought great discredit to the Army and to the NCO Corps.  There was no excuse for the behavior she exhibited and such conduct was inexcusable.  The commander stated she (the commander) questioned the applicant’s ability to be a role model for subordinates and she (the applicant) must take the necessary steps to avoid any future breaches of professional conduct.  The reprimand was administered as punishment under the provisions of Article 15, UCMJ.  
   
5.  On 10 October 2002, the applicant filed a whistleblower reprisal complaint with the inspector general (IG) and alleged she was improperly referred for a command-directed mental health evaluation (MHE) in reprisal for filing an equal opportunity (EO) complaint.  The IG investigated her allegation and determined it was unlikely she was referred as an act of reprisal as the commander was new to the unit and did not have knowledge of the EO complaint; she was referred for an MHE based on concern for her own well being.  Her allegation of whistleblower reprisal was not substantiated and it was determined her commander did not improperly refer her for an MHE.

6.  In late 2002, she was assigned to Headquarters and Headquarters Detachment (HHD), 168th Medical Battalion, Korea, as the 1SG.

7.  Between January and May 2003, she was frequently counseled by various members of her chain of command for disrespecting commissioned officers, failing to report to her appointed place of duty on several occasions, engaging in inappropriate behavior on several occasions, insubordination, and making false allegations of an improper relationship.  

8.  On 23 May 2003, she was counseled by the battalion commander that she was being suspended as the HHD 1SG, for being disrespectful to commissioned officers, failing to report to her appointed place of duty, failing to inform the command of her location, and failing to report for her scheduled counseling.

9.  A second MOR, dated 6 June 2003, is filed in the performance section of her AMHRR.  The MOR was issued by the 168th Medical Battalion commander.  In the MOR her commander stated:

	a.  She was being reprimanded for both displaying disrespect toward her detachment commander and for disobeying a direct order from him.  She had a heated discussion with her commander in the gym that was witnessed by several of her Soldiers. 

   b.  During the conversation, by her posture, attitude, and final action, she displayed discourteousness and disdain.  She disobeyed his order to stop and return to him while he was talking to her.  Her behavior potentially violated Article 89 and Article 92 of the UCMJ, and brought great discredit upon the unit, the chain of command, and was contrary to good order and discipline.

	c  She received verbal counseling on this from him (the battalion commander) while being counseled in writing on 5 May 2003 for disrespectful behavior to the previous commander in January 2003 and making allegations of an improper relationship.  At that time, he decided not to press for UCMJ action but preferred to give her the MOR as a way to give her a second chance.  Repeat of such behavior could subject her to UCMJ action to the detriment of her career and could result in discharge from the service under less than honorable conditions or worse.

10.  On 20 June 2003, she received NJP under the provisions of Article 15, UCMJ, for:

* two specifications of disobeying a lawful order
* three specifications of behaving disrespectfully to a commissioned officer
* three specifications of failing to report to her appointed place of duty
* one specification of being derelict in the performance of her duties

11.  On 30 July 2003, she was reported as absent without leave (AWOL) from her assigned unit and she was subsequently dropped from the rolls (DFR) as a deserter.

12.  On 30 October 2003, she was apprehended and returned to military control.  She was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Knox, KY.

13.  On 12 November 2003, she was reported as AWOL from her assigned unit and was DFR as a deserter.  On 14 November 2003, she was apprehended and returned to the PCF, Fort Knox, KY.

14.  On 23 December 2003, court-martial charges were preferred against her for one specification each of:

* being AWOL from 30 July to 30 October 2003
* being AWOL from 12 to 14 November 2003
* failing to report to her appointed place of duty on 16 December 2003
* disobeying a lawful order on 17 December 2003
* being disrespectful in language and deportment to an NCO on 17 December 2003

15.  On 13 January 2004, additional court-martial charges were preferred against her for one specification each of:

* failing to obey a lawful order on 12 January 2004
* assaulting a military police (MP) during the execution of her (the MP’s) duties by striking her in the leg with her (the applicant’s) foot on 12 January 2004
* disorderly conduct on 12 January 2004

16.  The applicant subsequently submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In this request she stated:

	a.  She was making the request of her own free will and had not been subjected to any coercion.  She was advised that by submitting the request for discharge, she acknowledged she understood the elements of the offenses charged and she was guilty of some or all of the charges include offenses which authorized the imposition of a bad conduct or dishonorable discharge.  She stated she did not desire further rehabilitation and had no desire to perform further military service.

	b.  She acknowledged she understood she may be discharged under conditions which were other than honorable and furnished an under other than honorable conditions discharge, she may be deprived of many or all Army benefits, may be ineligible for many or all benefits administered by the VA, and that she may be deprived of her rights and benefits as a veteran under both Federal and State laws.  She understood she would be automatically reduced to the rank/grade of private (PVT)/E-1 upon the approval of an under other than honorable conditions discharge and may expect to encounter substantial prejudice in civilian life.  She waived her right to seek legal counsel and did not submit a statement on her own behalf.

17.  On 11 February 2004, the separation authority approved the applicant’s request for a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He directed her reduction to PVT and discharge under other than honorable conditions.  On 11 February 2004, she was discharged accordingly.

18.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  She completed 17 years, 10 months, and 9 days of net active service and had 96 days of lost time due to being AWOL.

19.  There is no evidence in her available record that shows she was ever diagnosed with, or treated for any mental/medical condition/disorder that limited her ability to perform her assigned duties, was found to be unfitting, or required referral to a medical evaluation board (MEB)/physical evaluation board (PEB).  There is no evidence that shows she requested and/or was denied treatment for any mental condition/disorder while serving on active duty.




20.  The applicant provides 343 pages of medical records that show she has been treated by the VA since 2008 for post-traumatic stress disorder and alcohol/drug abuse. 

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	a.  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.

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

22.  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)/PEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).

23.  Title 10, U.S. Code, 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 percent.  Title 10, U.S. Code, 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 percent.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her discharge should be changed to a medical retirement because at the time of her discharge she was under retaliation for reporting allegations of wrongdoing and she was denied treatment for her severe mental problems because she was a whistleblower.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

3.  As such, she voluntarily, willingly, and in writing requested a discharge to avoid trial by a court-martial.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed was appropriate considering all the facts of the case.

4.  Although she had filed an allegation of whistleblower reprisal, this was against her previous command in 2002 and the IG subsequently did not substantiate this allegation.  The evidence of record does not show and the applicant has not provided any evidence that shows she was ever diagnosed with, or treated for, any mental/medical condition/disorder that required referral to an MEB/PEB during her active duty service.  There is no evidence that shows she requested and/or was denied treatment for any mental condition/disorder while serving on active duty.

5.  In view of the foregoing, she is not entitled to 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)                                         AR20130002401





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ABCMR Record of Proceedings (cont)                                         AR20130002401



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