BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130012442 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

   a.  reconsideration of the applicant's earlier request for correction of her records by:

*	upgrading her general discharge to an honorable discharge
*	changing the narrative reason for separation from "Misconduct (Serious Offense)" to "Medical"
*	reinstating her Post-9/11 GI Bill benefits by virtue of upgrading her discharge
*	expunging the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 February 2011, from her records
* reinstating her rank/grade from private (PVT)/E-1 to specialist 
(SPC)/E-4

b.  Counsel also submits new requests for:

* award of medical retirement and/or severance pay
* award of back basic pay and pay for unused leave time

2.  Counsel states:

* the applicant was injured during her service and the commander's finding that she was malingering is unsupported by the preponderance of the evidence
* the regulations and law prevent the commander from making arbitrary and capricious decisions and the rule exists that the commander's conclusions must be based on evidence
* the applicant should receive a discharge based on medical disqualification
* on 13 September 2012, the applicant took the Minnesota Multiphase Personality Inventory (MMPI) which shows she was not malingering
* the applicant's Structured Inventory of Malingering Symptomatology, a standard, objective psychometric test that identifies malingering, was within normal limits and did not indicate malingering
* the applicant's disabilities which were reported during service are real, not feigned or fabricated
* additional Department of Veterans Affairs (VA) medical evidence continues to accrue that shows actual injuries while the applicant was in service
* the VA has rated the applicant as 70 percent disabled and entirely service connected
* the evidence continues to accumulate showing the applicant's discharge was mishandled

3.  Counsel provides:

* legal brief
* VA rating decisions, dated 29 January 2013 and 31 January 2013
* VA medical record extracts
* compact disc with VA treatment records

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120016800, 26 March 2013.

2.  Counsel provided new arguments and medical record extracts.  This evidence is new and, as such, warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 16 June 2010 for a 4-year period in the rank/grade of SPC/E-4.  She completed basic combat training and she was assigned to Company A, 554th Engineer Company, 1st Engineer Brigade, Fort Leonard Wood, MO for completion of Advanced Individual Training.

4.  In September 2010, she sustained an injury while sitting on a cattle truck while Soldiers placed their rucksacks on top of her left shoulder and neck.  Her pain persisted despite physical therapy.  On 13 December 2010, she underwent a physician-directed evaluation by the orthopedic clinic that referred her to the medical evaluation board (MEB) process.

5.  On 16 November 2010, she was counseled by her platoon sergeant for failing to follow instructions when she left the charge of quarters (CQ) desk without permission, inconsistent behavior, and not keeping the chain of command informed.

6.  On 13 December 2010, she was issued a temporary physical profile for neck, bilateral knee, bilateral ankle, and left shoulder pain.  Her narrative summary shows she failed to meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) due to the conditions below that impacted her ability to perform her assigned duties and to complete her military training:

* Fibromyalgia which she stated did not exist prior to service and had been aggravated by service
* Right ankle osteochondral defect with right ankle pain, chronic, aggravated by service
* Chronic low back pain, stable, and possibly part of the fibromyalgia syndrome
* Chronic neck pain with degenerative disc disease and osteophytes as seen on her magnetic resonance imaging (MRI), aggravated by service
* Left shoulder pain, chronic and persistent, and possibly part of the fibromyalgia syndrome, that she states was aggravated by service
* Depression/anxiety/adjustment disorder, addressed and treated by psychiatry, improved and stable, which she stated did not exist prior to service

7.  She was referred to an MEB for review due to fibromyalgia, numerous subjective, physical myalgias (neck/back/left shoulder/knee/ankle aches and pain) and because of right ankle osteochondral defect lesion with chronic right ankle pain.

8.  On 13 January 2011, she was counseled by a sergeant for disrespectful behavior directed at a noncommissioned officer.
9.  On 18 January 2011, she was counseled by her platoon sergeant for violating command policy and various articles of the UCMJ, to include the wrongful use and possession of a controlled substance and failure to obey an order.

10.  On 23 February 2011, at a closed hearing, she declined trial by a court-martial and accepted non-judicial punishment (NJP) under the provisions of Article 15, UCMJ, for violating Article 115 in that she did, from about 13 December 2010 to on or about 20 January 2011, for the purpose of avoiding service as an enlisted person, feign neck, bilateral knee, bilateral ankle, and left shoulder pain.  Punishment included a reduction to PVT/E-1.  The Article 15 was not filed in any section of her Army Military Human Resource Record (AMHRR) since she was an E-4 at the time.

11.  On 2 March 2011, she appealed her punishment to the next higher commander but her appeal was denied.  She was informed of this decision and indicated she did not agree with the denial and stated she would speak with the Inspector General.

12.  On 10 March 2011, an MEB convened at the General Leonard Wood Army Community Hospital.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of fibromyalgia; right ankle osteochondral defect with right ankle pain, chronic;  chronic low back pain, stable and possibly part of the fibromyalgia syndrome; chronic neck pain with degenerative disc disease and osteophytes as seen on her MRI; and left shoulder pain, chronic and persistent, and possibly part of the fibromyalgia syndrome.  She was also diagnosed with various other conditions that met retention standards, including depression/anxiety/adjustment disorder; right wrist pain; myopia; and allergic rhinitis to dust and mold.  The MEB recommended referral to a physical evaluation board (PEB).  There is no indication if she agreed or disagreed with the MEB's findings and recommendation or whether she desired/did not desire to continue on active duty.

13.  On 20 April 2011, the applicant's immediate commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - serious offense.  The immediate commander stated:

* on or about 13 January 2011, she was issued a physical profile for neck, bilateral knee, bilateral ankle, and left shoulder pain
* the profile specified the applicant would follow the limitations stated on the profile
* on or about 20 January 2011, she was suspected of malingering after video footage revealed she violated her profile
* her exhibited behavior indicated there may have been questions as to the validity and extent of her medical issues

14.  On 20 April 2011, the applicant acknowledged receipt of the commander's notification to separate her.  She consulted with legal counsel and she was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by an administrative separation board and a personal appearance before an administrative separation board, and she elected to submit a statement in her own behalf.  She further indicated:

* she understood she could expect to encounter substantial prejudice in civilian life if a general discharge was issued to her
* she understood she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

15.  In her statement, she stated:

* she previously worked as a dancer
* other females in the unit were double-faced and she had lost trust of them
* she caved in to her friends and performed a dance for them
* she acknowledged she was wrong and she should not have caved in to other females; she learned her lesson
* she asked to leave the Army without it affecting getting further employment

16.  The immediate commander initiated separation action against her under the provisions of Army Regulation 635-200, chapter 14 and he recommended a general discharge.

17.  On 4 May and 1 June 2011, her intermediate and senior commanders reviewed the separation action and carefully considered all matters.  Both recommended approval of her discharge action with the issuance of a general discharge. 

18.  On 24 May 2011, the applicant submitted a memorandum to the separation authority requesting to proceed with the MEB vice the administrative separation.  She contended that:
* she disagreed with her chain of command's assertion that she was a malingerer
* some of the females knew she was a professional dancer and they wanted her to dance for them
* she knew she would be violating her profile but she danced for her friends anyway, albeit for only 3 minutes
* a female Soldier recorded her dancing and showed the recording to the chain of command
* contrary to the statements, she did not perform a split nor did she dance for 10 minutes
* she was supporting herself on a bedpost so her right leg and right ankle were not bearing her full body weight
* she knew she was wrong but her five medical conditions existed well before she was observed dancing in violation of her physical profile

19.  On 3 June 2011, a military attorney reviewed the separation packet and found it legally sufficient.  The attorney alerted the separation authority that the applicant was being evaluated for physical disability and that he would have to make a decision to proceed with the administrative or the medical processing.

20.  On 8 June 2011, the separation authority, a major general, was presented with the facts:

	a.  The applicant was recommended for administrative separation under Army Regulation 635-200, chapter 14-12c for misconduct - commission of a serious offense.  The chapter packet was initiated on 20 April 2011.  She previously received an Article 15 for malingering.  She had multiple physical profiles prohibiting her from training and she was supposed to use crutches due to the extent of her injuries.  However, she was videotaped performing a dance routine, without the crutches, and in violation of her profile.

	b.  The applicant was evaluated by an MEB on 10 March 2011 and she was found medically unfit with a recommendation to forward her case to a PEB.  
According to the MEB, her diagnosis was fibromyalgia, right ankle osteochondral defect, chronic low back pain, chronic neck pain with degenerative disc disease and osteophytes, and chronic left shoulder pain.  These conditions were determined to have resulted from a training accident wherein Soldiers accidently placed 8 to 9 rucksacks on top of her left shoulder while she was sitting in the truck.

	c.  After careful consideration, the separation authority determined the applicant's medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendation of the administrative separation action and that other circumstances of her case did not warrant disability processing instead of further processing for administrative separation.  Based on this determination, he approved the administrative separation in lieu of physical disability processing and ordered the applicant discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.

21.  On 20 June 2011, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (serious offense) with service characterized as under honorable conditions (general).  She completed 1 year and 5 days of creditable active service.  The DD Form 214 she was issued at the time shows in:

* Item 16 (Days Accrued Leave Paid) – 14.5
* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) – Under Honorable Conditions (General)
* Item 25 (Separation Authority) – Army Regulation 635-200, paragraph
14-12c
* Item 26 (Reentry (RE) Code) – 3
* Item 26 (Separation Code) – JKQ
* Item 28 (Narrative Reason for Separation) – Misconduct (Serious Offense)

22.  On 25 April 2012, the Army Discharge Review Board determined she was properly and equitably discharged.  

23.  On 29 January 2013, the VA awarded her service-connected disability compensation for:

* Fibromyalgia – 40 percent
* Adjustment disorder – 30 percent
* Ankle condition – 10 percent
* Lumbar strain – 10 percent
* Cervical spine, degenerative disc disease – 10 percent
* Left shoulder strain – 10 percent

24.  On 31 January 2013, the VA advised the applicant of her monthly entitlement amount as a single veteran with no dependents.

25.  During the processing of this case, the Defense Finance and Accounting Service reviewed the applicant's Master Military Pay Account (MMPA) and found her final payment was in the amount of $733.80 which included payment for 15 days of leave.

26.  Counsel provides a compact disc which shows the applicant's ankle and cervical spine imaging.  He also provides medical record extracts which show treatment and medical assessments of the applicant.

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

	a.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 1-35 states that when the medical treatment facility (MTF) or the attending medical officer determines a member being considered for elimination for misconduct does not meet the retention medical standards, he/she will refer that member to a medical board.  The MTF commander will furnish a copy of the approved board proceedings to the commander exercising separation authority over the member concerned.  The commander 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.

28.  All Army Activities (ALARACT) Message 159/2012, dated 13 June 2012, clarified enlisted administrative processing for Soldiers identified as not meeting medical retention standards.  It states, except for separation in lieu of a court-martial, final disposition through the Army Physical Disability Evaluation System (PDES) takes precedence over administrative separation processing regardless of when the medical determination is made (either before, during, or after initiation of administrative separation):

	a.  The MTF commander or attending medical officer will refer Soldiers to an MEB who do not meet medical fitness standards for retention.  A finding that a Soldier does not meet medical fitness standards for retention includes when the second signature is applied to the DA Form 3349 establishing a permanent "3" or "4" in any military physical profile serial system (PULHES factor) for a duty-related condition.

	b.  When either the MTF commander or attending medical officer determines a Soldier does not meet retention standards, the separation authority will not take final action on the administrative separation board until a final medical retention determination is made.

	c.  When the MEB determines referral to a PEB is warranted Soldiers will be referred to a PEB unless the Soldier is processing for administrative separation for fraudulent entry or misconduct.  When Soldiers are undergoing administrative separation for fraudulent entry or misconduct, the separation authority must direct, in writing, whether to proceed with the PDES process or administrative separation.  The separation authority's written directive must address whether the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation and/or whether other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

29.  Army Regulation 635-40 establishes the 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 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 PEB if the separation authority 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.

30.  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 of less than 30 percent.

31.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense.

32.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the provisions of Article 15, UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by a record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR, formerly known as the Official Military Personnel File (OMPF), is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37 states that for Soldiers E-4 and below who have been in the Army less than 3 years as of the date punishment is imposed, the original DA Form 2627 will be filed locally in NJP files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer from the unit, whichever occurs first.  For these Soldiers, the imposing commander should annotate the filing instructions on the DA Form 2627 as "Not Applicable" (N/A).

33.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The naming conversion of AMHRR replaces the OMPF.  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.

	a.  Army Regulation 600-8-104, Appendix B, contains Table B-1.  This table is a compilation of all forms and documents that have been approved by Department of the Army for filing in the AMHRR and/or the interactive Personnel Electronic Records Management System (iPERMS).  The composition of the AMHRR and non-AMHRR folders is as shown in appendix B, primary folder column.  Some documents are placed in multiple folders to assist in Soldier management.

	b.  Table B-1 states case files for approved separations are filed in the service section of the AMHRR.

34.  The Manual of Courts-Martial states for Article 115, malingering:

	a.  Text of statute:  Any person subject to this chapter for the purpose of avoiding work, duty, or service (1) feigns illness, physical disablement, mental lapse or derangement; or (2) intentionally inflicts self-injury, shall be punished as a court-martial may direct.

	b.  Elements:  (1) That the accused was assigned to or was aware of prospective assignment to, or availability for, the performance of work, duty, or service; (2) That the accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself; and (3) That the accused's purpose or intent in doing so was to avoid the work, duty, or service.

	c.  Explanation – Nature of Offense:  The essence of this offense is the design to avoid performance of any work, duty, or service which may properly or normally be expected of one in the military service.  Whether to avoid all duty, or only a particular job, it is the purpose to shirk which characterizes the offense. Hence, the nature or permanency of a self-inflicted injury is not material on the question of guilt, nor is the seriousness of a physical or mental disability which is a sham.  Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose.

	d.  The maximum punishment for feigning illness, physical disablement, mental lapse, or derangement is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. 
DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support counsel's request for correction of the applicant's records.

2.  The fact that the VA has granted her service-connected disability is not evidence of an error in the decision to release her from active duty on 20 June 2011 due to misconduct (serious offense).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The VA 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.  Receiving a rating from the VA is not evidence of error in the reason for which the Army released a Soldier from active duty.

4.  The applicant's MMPA shows she was paid for her unused leave and insufficient evidence has been presented showing she was not paid for this leave.

5.  The Article 15 is not filed in the applicant's AMHRR as a separate document because she was holding the rank/grade of SPC/E-4 or below at the time she accepted the Article 15.  The Article 15 was considered as an allied document to her separation packet.  Therefore, the Article 15 is properly filed with her separation packet and there is no basis for removal of this document.

6.  The applicant's reduction in rank was her punishment for violation of the UCMJ.  Therefore, she is not entitled to reinstatement of a higher grade.

7.  Although the applicant had medically unacceptable conditions, the separation authority, after careful consideration, determined her medical conditions were not the direct or substantial contributing cause of the conduct that led to the recommendation to separate her.  He further determined that there was no compelling evidence or other circumstances presented that warranted disability processing over administrative separation.  The available evidence appears to support his decision.

8.  The applicant's discharge was neither improper nor inequitable and she was not denied due process.  Insufficient evidence has been presented to show the applicant’s discharge should be upgraded.

9.  With respect to any VA benefits and Post 9/11 GI Bill benefits, entitlements to any VA benefits are not within the purview of this Board and should be addressed with that agency.

10.  In view of the foregoing, there is an insufficient basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  ___x_____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120016800, dated 26 March 2013.

2.  With regard to Counsel's request for award of medical retirement and/or severance pay and award of back basic pay and pay for unused leave time, the Board further determined the overall merits of this case are insufficient as a basis to grant the requested relief.



      _______ _  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)                                         AR20130012442



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ABCMR Record of Proceedings (cont)                                         AR20130012442



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