BOARD DATE:   23 January 2014

		DOCKET NUMBER:  AR20130007085 


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 his general discharge be changed to a medical retirement and all lost time recorded be credited toward his active duty time.  He also requests the Meritorious Unit Commendation be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states:

	a.  He had an approved chapter 61 medical retirement from June 2012 which was done through the new pilot Integrated Disability Evaluation System (IDES) process.   He believes his coerced resignation to be an unjust abuse of power by his unit, the U.S. Army Student Detachment, Fort Jackson, and the unit's Judge Advocate (Captain (CPT) W____), in clear contravention of the Army's stated policies in dealing with a Soldier undergoing the IDES process.

	b.  His DD Form 214 and Enlisted Record Brief (ERB) do not show a Meritorious Unit Commendation.

3.  He provides copies of:

* a memorandum directing his disenrollment from the Reserve Officers' Training Corps (ROTC) due to a medical condition, dated 23 March 2010
* Physical Evaluation Board (PEB) and Medical Evaluation Board (MEB) documents
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 21 October 2011
* DA Form 2823 (Sworn Statement), dated 1 December 2011
* Email notes concerning his interview with a Federal Bureau of Investigation (FBI) agent
* Meritorious Unit Commendation Orders
* DA Form 458 (Charge Sheet), dated 5 January 2012
* his DD Form 214

CONSIDERATION OF EVIDENCE:

1.  Following prior service, the applicant enlisted in the Regular Army on 
21 November 2007.  He held military occupational specialty 27D (Paralegal Specialist).
   
2.  His ERB shows he was assigned to the 1st Battalion, 6th Field Artillery from 
7 June 2008 through 23 June 2009.

3.  The applicant's name is listed on a roster included with Headquarters, III Corps and Fort Hood Orders 182-10, dated 30 June 2008, which show the 1st Battalion, 6th Field Artillery, Fort Hood, Texas, was ordered to be deployed to the Central Command (CENTCOM) area of responsibility (AOR) effective 30 June 2008 for a period of 455 days. 

4.  U.S. Army Human Resources Command Permanent Orders 348-15, dated 
14 December 2011, shows the 1st Battalion, 6th Field Artillery Regiment was awarded the Meritorious Unit Commendation for the period 2 July 2008 to 22 July 2009.

5.  12 August 2009 orders show the applicant was assigned to the U.S. Army Student Detachment, Fort Jackson, South Carolina, with duty at Saint John's University, New York.  

6.  A 23 March 2010 Headquarters, U.S. Army Cadet Command, memorandum states the applicant was disenrolled from the ROTC program due to a medical condition.  

7.  A 21 October 2011 DA Form 2627 shows the applicant was to receive nonjudicial punishment (NJP) for four incidents of missing appointments and one incident of being disrespectful in language toward a superior noncommissioned officer.  On 3 November 2011, he demanded trial by court-martial.

8.  A 6 December 2011 U.S. Army Physical Evaluation Board, Fort Sam Houston, Texas, letter shows the applicant was found to be physically unfit to continue military service due to anxiety disorder and migraine headaches.  The DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows the PEB recommended a combined rating of 80% and that he should be placed on the temporary disability retirement list (TDRL) with reexamination during February 2013.  The DA Form 199 also shows the proceedings were approved on 24 May 2012.

9.  In a 1 December 2011 sworn statement the applicant relates that after returning from a neurological appointment an incident arose involving himself and 1LT A____.

	a.  The applicant felt he had been subject to a hostile work environment for being chronically ill.  He expressed himself to Sergeant First Class (SFC) H____, As the applicant was leaving he was accosted by First Lieutenant (1LT) A____ who slammed the open palm of his hand against the applicant's ribcage and began pushing his chest repeatedly.  

	b.  He asked 1LT A____ to stop and was eventually able to squeeze past him.  At no time did the applicant curse or threaten by word or action physical harm to anyone.

	c.  The applicant stated, in effect that:  1LT A____ is the one in this matter who is guilty of simple assault against my person and his senior noncommissioned officers (NCOs) namely 1SG S____ and SFC H____ are shamelessly, and in contravention with the UCMJ, lying to the Military Police that I committed the act of simple assault upon the person of 1LT A____ to cover up what 1LT A____ did and to further their often stated (adnauseum) goal over the course the past few months to see me in jail.

10.  A 17 December 2012 U.S. Army Physical Disability Agency memorandum states that the PEB Proceedings were administratively terminated and all authorizations and the PEB Proceedings were void.  This memorandum references "… the attached memorandum dated 29 November 2012."  The referenced memorandum is not available for review.

11.  A 5 January 2012 DD Form 458 shows the applicant was referred to a special court-martial, charged with: 

* fifteen specifications of missing appointments
* one specification of striking a superior commissioned officer
* one specification of willfully disobeying a lawful command from a superior commissioned officer 

12.  The applicant's discharge processing documents are not available.  However, his DD Form 214 shows he was administratively discharged on 
10 December 2012 under the provisions of chapter 10, Army Regulation 635-200 (Active Duty – Enlisted Administrative Separations) as a private/E-1.  He was given a general discharge.  He had completed 4 years, 2 months, and 25 days of total active duty service.  His DD Form 214 does not list the Meritorious Unit Commendation.

13.  In his 12 March 2013 letter to the Secretary of the Army he states that:

	a.  He returned from deployment to Afghanistan in June 2009 and was selected to be an Officer Candidate in the Army's Green-to-Gold Program stationed in Queens, New York and on the administrative rolls of the U.S. Army Student Detachment, Fort Jackson, South Carolina. 

	b.  During the post-deployment period, he was diagnosed with major depressive disorder, post-traumatic stress disorder (PTSD), and severe anxiety disorder.  An MEB was initiated in August 2011, and he was subsequently rated 80% disabled by the Army and 90% disabled by the Department of Veterans Affairs (VA) through the IDES.

	c.  He initiated contact with a congressional representative seeking assistance in July 2011 and this enraged the command.  For this grave offense of communicating with his local congressman he was presented with a Field Grade nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for missing medical appointments.

	d.  He turned down the NJP and elected trial by court-martial.  Though he did miss the appointments because of chronic migraines, he felt it was disproportionate to receive such severe administrative punishment for known medical issues, especially as the missed appointments were not command-directed but initiated by him in the course of seeking medical treatment.

	e.  On 1 December 2011, he made a sworn written statement to the Fort Jackson Military Police that the Company Executive Officer, 1LT A____, shoved him in the chest in front of several witnesses who were members of the unit.  To the applicant's utter disbelief, the unit added a false charge of him shoving 1LT A____ in his chest.  

	f.  To further bolster their growing legal case against him, he was interrogated by the FBI-led Joint Counterterrorism Task Force on 10 January 2012, on an anonymous unit complaint that he made "terroristic threats." The FBI found nothing whatsoever to substantiate the allegation.   
	g.  Why would a Soldier, especially a member of the Judge Advocate General's (JAG) Corps, demand a trial by court-martial over missed medical appointments on 3 November 2011 and then proceed weeks later on                   1 December 2011 to strike an officer and then further make terroristic threats against his unit?

	h.  At a September 2012 special court-martial he was found guilty of missing medical appointments and "touching 1LT A____ with an open hand."  He was made to forfeit all pay and rank.  He strongly contends that he was found guilty of touching 1LT A____ by perjured testimony.  The incident occurred in front of almost two dozen witnesses in a large open office yet no one saw anything.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Chapter 4 (Procedures), section I (Eligibility for Disability Evaluation), paragraph 4-3 (Enlisted Soldiers subject to administrative separation), provides that, except as provided below, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

	b.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the general court-martial convening authority (GCMCA), must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds the following:

		(1)  The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

		(2)  Other circumstances warrant disability processing instead of alternate administrative separation.

15 .  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.



	a.  Chapter 10 of that regulation provides, in pertinent part, 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 and must include the individual's admission of guilt.  
Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7b states 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.  

16.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record; it is not an investigative body.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  During the applicant's deployed service his unit was cited for award of the Meritorious Unit Commendation.  This unit award should be listed on his DD Form 214.

2.  There is no available evidence to substantiate the applicant's claim he was coerced by the chain of command into requesting a chapter 10 discharge.

3.  Records show a PEB found the applicant physically unfit and recommended his placement on the TDRL.  The PEB proceedings were approved on 
24 May 2012.

4.  An enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

	a.  Records show that charges were preferred against the applicant  on 
5 January 2012.  It is presumed that his request for discharge in lieu of trial by 


court-martial, an action which authorizes a characterization of service of under other than honorable conditions, was initiated prior to approval of the applicant's PEB proceedings.

	b.  A 17 December 2012 U.S. Army Physical Disability Agency memorandum announced the applicant's PEB proceedings were administratively terminated.  All authorizations and the PEB Proceedings were void.  

	c.  Thus, it appears the GCMCA determined the applicant's unfitting medical condition was not a contributing reason for his conduct resulting in the  court-martial charges.  The applicant provides insufficient evidence to show the GCMA made an incorrect determination.

5.  The specific facts and circumstances surrounding his discharge are not available.  His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

6.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X__  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief by adding the Meritorious Unit Commendation to his DD Form 214.


2.  The Board further determined 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 correcting his DD Form 214 to show he 
was medically retired.



      _________ 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)                                         AR20120009052



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ABCMR Record of Proceedings (cont)                                         AR20130007085



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