BOARD DATE:	  21 May 2014

		DOCKET NUMBER:  AR20130015272 


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 correction of his general discharge for misconduct to an honorable separation due to disability retirement.  He also requests restoration to the rank of sergeant (E-5) and award of the Army Good Conduct Medal. 

2.  The applicant states he suffered a moderate traumatic brain injury (TBI) while trying to stop an altercation in Germany.  He was transferred to the United States for treatment.  He also states that:

* he was supposed to be transferred back into the Warrior Transition Unit, receive brain surgery, and be processed for medical retirement at Fort Campbell Kentucky
* First Sergeant (1SG) P------- repeatedly refused to transfer him and he was forced to self-medicate in order to obtain relief from the migraine headaches resulting from his TBI
* After 1SG P------- found out about the "spice" incident he called the applicant a liar about his medical situation and maintained that the applicant was fit for duty
* 1SG P------- rushed him through the chain of command where he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ); he lost his rank and pay and was unjustly separated from the military when he should have been medically retired
* all the enlisted people knew he needed brain surgery and was unfit for duty
* the chain of command all lied to the Members of Congress
* he went to the Department of Veteran Affairs (VA) to receive what should have been accomplished at Fort Campbell, Kentucky
* he is really interested in appearing before the Board to explain his case in person

3.  The applicant provides copies of-

* report of computed tomography (CT) scan of the cervical spine, dated 19 August 2010 – at Landstuhl, Germany
* report of TBI – speech pathology assessment, dated 7 September 2010 – at Fort Gordon, Georgia
* report of medical visit to Springfield, Ohio Regional Medical Center Emergency Department (date illegible)
* a handwritten chronology
* a letter, dated 7 March 2012, from United States (U.S.) Representative Steve A------
* applicant's discharge upgrade request to the Army Discharge Review Board
* Fax cover page from Representative Steve A------
* Army Review Boards Agency's acknowledgement to Representative Steve A------


CONSIDERATION OF EVIDENCE:

1.  On 8 August 2008, the applicant enlisted in the Regular Army.  He completed training and progressed normally.  On 1 May 2010, he was advanced to specialist (E-4). 

2.  In August 2010, he sustained a head injury in Germany, apparently while attempting to break up a fight.  The applicant was transferred to Fort Gordon where he received treatment and counseling with the Warrior Transition Unit.

3.  He was cleared for duty and assigned to Fort Campbell in August 2011.

4.  In September 2011, he was found to possess synthetic cannabis, "spice," and drug paraphernalia for which he received NJP under the provisions of Article 15 of the UCMJ.  The punishment consisted of reduction to pay grade E-1, forfeiture of $733 per month for 2 months, and extra duty for 45 days.  


5.  On 7 December 2011, he was again found in possession of "spice."

6.  On 8 December 2011, the applicant completed a medical history questionnaire in which he indicated that his overall health was about the same as his last examination.  He had been treated by Dr. Dedig.  He had experienced severe then moderate TBI.  He listed his medications and indicated that he had moderate TBI cognitive disorders and subdural hemorrhage.

7.  A medical examination on 9 December 2011 noted a history of TBI for which he was followed at Fort Gordon until about August 2011 when he was cleared for duty and transferred to Fort Campbell.  He was caught with illicit drugs at Fort Campbell.  His TBI symptoms seem to have become prevalent and further TBI evaluation was requested.  "Case reviewed by Chief TBI clinic with findings of no additional testing/treatment indicators."  The applicant was cleared for separation processing.

8.  On 9 December 2011, a psychiatrist conducted a mental status evaluation.  He deemed that the applicant was fit for duty and found no obvious impairments to his cognition; his behavior was cooperative, perceptions normal, unlikely to be impulsive and not dangerous.  In the doctor’s opinion the applicant could understand and participate in the administrative process, could appreciate the difference between right and wrong, and met medical retention requirements.  The psychiatrist entered the following remarks, "…Service member seen today for clearance for chapter.  He is currently pending AR 635-200, chapter 14-12 or similar chapter.  He was explained the non-confidential nature of the evaluation and agreed to proceed and release the information.  He had deployed once and has exposures consistent with that.  More specifically, he had neuropsychiatric symptoms that have been treated.  (I am aware of and have reviewed his treatment history.)  Any current symptoms do not qualify for disposition through medical channels.  Soldier also agreed to this chapter and he wants out of the Army.  He meets medical retention Per AR 40-501, and he is therefore cleared for this chapter…" 

9.  On 5 January 2012, the company commander notified the applicant of his intention to recommend separation with a general discharge for the commission of a serious offense.  He pointed out the possible consequences of such a discharge and the applicant's attendant rights.

10.  The applicant waived his right to consult counsel, to representation by counsel, and to submit statements in his own behalf.  He acknowledged he could expect to encounter substantial prejudice in civilian life and that he might be ineligible for veterans' benefits under Federal and State laws.

11. The separation authority approved the separation and directed a general discharge under honorable conditions.

12.  On 20 January 2012, the applicant was discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.

13.  The applicant had completed 3 years, 5 months, and 13 days of creditable service and had no lost time.  His authorized awards were the Army Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon (2nd Award).

14.  On 28 September 2012, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

15.  The documents submitted by the applicant in support of his request included-

* the report of an emergency room visit at the Springfield Ohio Regional Medical Center – the date is illegible – there is no indication of the history reported or the tests conducted – there are diagnoses of brain injury and chronic subdural hematoma – follow-up was recommended in two weeks with neurosurgery at Ohio State University or Miami Valley 

* a 7 March 2012 letter from U.S. Representative Steve A------ who wrote, "…According to AR 635-200 Subparagraph 33 [sic] Mr. (the applicant) should have received medical treatment prior to any administrative actions..."  He indicated the visit to Springfield Ohio Regional Medical Center occurred after the applicant was discharged 

16.  Army Regulation 635-200 (Administrative Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 

	a.  Paragraph 1–33, disposition through medical channels states that-

* Except in separation actions under chapter 10 and as provided in paragraph 1–33b, disposition through medical channels takes precedence over administrative separation processing.
* When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for 


administrative separation under chapters 7 (see section IV), 14, or 15 does not meet the medical fitness standards for retention (see Army Regulation 40–501, chapter 3), he/she will refer the Soldier to a Medical Evaluation Board (MEB) in accordance with Army Regulation 40–400; the administrative separation proceedings will continue, but final action by the separation  authority will not be taken, pending the results of MEB
* If the MEB findings indicate that referral of the case to a physical evaluation board (PEB) is warranted for disability processing under the provisions of Army Regulation 635–40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s general court-martial convening authority (GCMCA) and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined:

o The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination
o Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation
o The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated
o The GCMCA’s signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB
o Copies of the GCMCA’s decision will be furnished to the unit commander and included in the administrative separation proceedings
o The unit  commander will suspend processing of the administrative separation action pending the PEB
o If the Soldier is found physically fit, the administrative separation action will be resumed
o If the Soldier is found physically unfit, the administrative separation action will be abated
o Disability processing is inappropriate if the conditions in b(1)(a) and (b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent

	b.  Paragraph 3-7a states 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.

	c.  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.  

	d.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense.  A serious offense is one in which the specific circumstances warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM).  Subparagraph 14-12c(2) states that drug abuse is a serious offense.  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 (UOTHC) is normally appropriate for a Soldier discharged under this chapter.  

17.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.  He was transferred to Fort Campbell for duty and not for further treatment and he has provided no evidence to show otherwise.

2.  Between the second "Spice" incident on 7 December 2011 and the 
20 January 2012 discharge his medical evaluations were thorough and extensive.  The applicant has offered nothing that outweighs the 9 December evaluation that noted a history of TBI for which he was followed at Fort Gordon until about August 2011 when he was cleared for duty and transferred to Fort Campbell.  He was caught with illicit drugs at Fort Campbell.  His TBI symptoms seem to have become prevalent and further TBI evaluation was requested.  His case reviewed by the Chief, TBI clinic with findings of no additional testing or  treatment indicators.  The applicant was medically cleared for separation processing.  

3.  Furthermore, that evaluation was followed up by an 11 December 2011 psychiatric evaluation in which the doctor reported. "…(I am aware of and have reviewed his treatment history.)  Any current symptoms do not qualify for disposition through medical channels.  Soldier also agreed to this chapter and he wants out of the Army.  He meets medical retention Per AR 40-501, and he is therefore cleared for this chapter…"

4.  There was no violation of Army Regulation 635-200, paragraph 1-33.  The medical issue was properly finalized before the administrative separation progressed.

5.  The applicant provided no medical evidence to substantiate his assertion that his situation was such that he had to to "self- medicate" with illegal drugs.  So far as the available evidence shows, he used illegal drugs because he chose to do so.

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.  The fact that he received a general discharge rather than the UOTHC discharge he could have expected to receive is an appropriate application of the mitigation arising from the overall quality of his service and the circumstances of his injury.

7.  The applicant was reduced in rank by NJP and commited the same offense again.  There is no evidence or rationale to support restoring his rank.  Considering that his only period of active duty service was ended by discharge for misconduct he clearly does not qualify for the Army Good Conduct Medal.

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)                                         AR20130015272





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ABCMR Record of Proceedings (cont)                                         AR20130015272



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