IN THE CASE OF:	 

		BOARD DATE:	    11 June 2014

		DOCKET NUMBER:  AR20130015948


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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120007090, dated 11 July 2013.  Specifically, he requests:

* the voiding of his discharge and his reinstatement in the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program
* promotion to the rank/grade of sergeant first class (SFC)/E-7, effective   24 March 2011, the date he was placed on the SFC promotion list
* all back pay and allowances he would have received since 6 May 2011, the date he was discharged
* processing through the Army Physical Disability Evaluation System (PDES)
* correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 May 2011, to show he was separated by reason of medical disability versus a pattern of misconduct

2.  In summary, the applicant states:

   a. On 10 August 2010, he was issued a permanent profile that indicated he needed a non-duty related physical evaluation board (PEB).  At that time, he was serving on active duty in the USAR AGR Program, under the provisions of Title 10, U.S. Code (USC).  

   b. Active duty Soldiers who do not meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, must be referred to a medical evaluation board (MEB)/PEB for a fitness-for-duty determination.  Active duty Soldiers with a permanent 3 or 4 in their physical profile, who meet or might meet medical retention standards, must be referred to a military occupational specialty (MOS)/medical review board (MMRB) to determine if they are world-wide deployable.  

   c. He received his profile prior to 17 September 2010, the date he was notified he was being considered for separation.  

   d. According to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-33, separations based on medical unfitness take precedence over administrative separations, except in those cases where the Soldier is being separated under the provisions of Army Regulation 635-200, chapter 10.  The redacted report of investigation by the Department of the Army Inspector General's office indicated he should have received an MEB/PEB; however, that did not occur. 

   e. When a medical treatment facility (MTF) commander or attending medical officer determines a Soldier being processed for administrative separation, under chapters 7 or 14, does not meet the medical fitness standards for retention, that Soldier will be referred to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB/PEB.  In processing his administrative separation without referring him to an MEB/PEB, his commander ignored this regulatory provision.

   f.  It is the commander’s responsibility to counsel Soldiers with physical profiles that may affect their deployment status; however, he was not counseled by anyone in his command regarding the MEB/PEB process.

   g.  There is no indication that an MEB/PEB would have changed an administrative separation board's decision; however, his referral to an MEB/PEB was required, based on his receipt of a DA Form 3349 (Physical Profile) on       10 August 2010, prior to his notification of possible administrative separation.  This contention is supported by the U.S. Army Physical Disability Agency, a redacted Army Report of Investigation that determined he should have received an MEB/PEB, and applicable Army regulations.

	h.  He showed potential for and deserved rehabilitation as defined in Army Regulation 635-200.  His reenlistment on 26 March 2010, the fact that the       U.S. Army Recruiting Command (USAREC) approved him to return to recruiting duty, and his selection for promotion to SFC attests to his potential for further service.  

	i.  An Army Report of Investigation found his last Noncommissioned Officer Evaluation Report (NCOER) contained administrative errors:  he was never counseled by his rater, he was not MOS qualified in the position in which he was serving – that position required a 91B3O (Wheeled Vehicle Mechanic), his MOS is 91C (Utilities Equipment Repairer), he did not receive training for the duty-MOS assigned to the position he occupied. 

	j.  His removal from the AGR Program was improper, based on fraudulent information, and was procedurally incorrect.

3.  The applicant provides volumes of supporting documentation, organized into the following categories:

   a. Documents previously considered by the Board, arranged chronologically:

* extracts from Army Regulation 40-501 and Army Regulation 635-200
* a roster of all AGR Soldiers, including the applicant, selected for promotion to the rank/grade of SFC/E-7; the selection year is not identified
* extracts of a redacted Report of Investigative Inquiry
* DA Form 2166-8 (NCOER), covering the period 20090331–20091231
* Orders R-03-083985, issued by U.S. Army Human Resources Command (HRC), St. Louis, MO, on 31 March 2010
* DA Form 1059 (Service School Academic Evaluation Report), Quartermaster/Chemical Equipment Repairer Advanced Leader Course 001-2010, covering the period 20100405–20100518
* a summary of care received, from Aurora Behavioral Health Care, Glendale, AZ, undated
* DA Form 4856 (Developmental Counseling Form), dated 20 May 2010 (with rebuttal comments dated 30 May 2010)
* a letter from his battalion commander, dated 25 May 2010, with corresponding orders and travel arrangements, subject: Order to Annual Training
* Developmental Counseling Form, dated 25 May 2010
* a memorandum from the Combat Support Training Exercise Chaplain, 91st Division (Training Support), dated 28 May 2010, subject: Recommendations ICO (in case of) SSG (Staff Sergeant) Mxxxxx Hxxxxx, USAR, 9266
* three Developmental Counseling Forms, all dated 29 May 2010
* a memorandum from his commander, dated 2 June 2010, subject: Notification of Commanding Officer Referral for Mental Health Evaluation (Non-Emergency)
* DA Form 3349, dated 12 June 2010
* Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 14 June 2010
* a memorandum from a clinical psychologist at the U.S. Army Medical Activity, Fort Irwin, CA, dated 17 June 2010, subject: Routine Command Directed Evaluation (Hxxxxx, Mxxxxx; 9266)
* DA Form 4187-1-R (Personnel Action Form Addendum), dated
21 June 2010
* Developmental Counseling Form, dated 1 July 2010
* Physical Profiles, dated 14 July 2010, 28 July 2010, and 10 August 2010
* Developmental Counseling Form, dated 17 September 2010 (with rebuttal comments)
* Developmental Counseling Form, dated 14 October 2010 (with rebuttal comments)
* NCOER, covering the period 20100101–20101231
* a memorandum from a Physician's Assistant (PA-C) from the 56th Medical Operations Squadron, Luke Air Force Base, AZ, dated            5 January 2011 
* two letters (summaries of care provided to date) from a staff psychologist from the 56th Medical Operations Squadron, Luke Air Force Base, AZ, the latter dated 19 January 2011
* seven different letters of support from fellow Soldiers
* two different letters of acceptance from USAREC, dated 19 January and 20 January 2011
* a 36-page record of proceedings pertaining to the applicant's administrative separation board
* Findings and Recommendations Worksheet – Separation Hearing of SSG [Applicant]
* a memorandum from the Chief, Administrative Law, Headquarters, 335th Signal Command (Theater), East Point, GA, dated 3 February 2011, subject: Legal Review of Board Proceeding, SSG [Applicant]
* a memorandum from the applicant's Senior Defense Counsel, dated    3 February 2011, subject: Request for Suspension of Discharge – SSG [Applicant]
* DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), finalized on 9 February 2011
* a memorandum from Major General Dxxx, the commander of the 335th Signal Command, East Point, GA, dated 9 February 2011, subject: Administrative Separation Under Army Regulation 635-200, Chapter 13 (Unsatisfactory Performance) and Chapter 14 (Misconduct)
* U.S. Army Medical Command (MEDCOM) Form 4038 (Report of Behavioral Health Evaluation, dated 25 February 2011
* an extract of a roster of AGR Soldiers selected for promotion to SFC; the selection year is not identified, with "24 March 2011 Promotion to SFC" hand-written at the top
* Physical Profile, dated 6 April 2011
* Orders C-04-106033, issued by HRC, Fort Knox, KY, on 21 April 2011
* Orders D-04-190047, issued by HRC, Fort Knox, KY, on 21 April 2011
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 5 May 2011
* DD Form 214, for the period ending 6 May 2011
* two letters written to the Board by his prior Senior Defense Counsel
* a letter of support from a fellow Soldier who served as his direct supervisor during the period of contention (2010-2011), dated              11 January 2012
* a letter of recommendation from the Deputy Command Surgeon, U.S. Army Reserve Command, Fort Bragg, NC, dated 10 January 2013 

   b. Documents not previously considered by the Board, arranged chronologically:

* an extract of the Supplemental Record of Proceedings pertaining to ABCMR Docket Number AR20050001090, dated 3 March 2005
* ABCMR Docket Number AR20110004434, dated 12 January 2012
* ABCMR Docket Number AR20110023388, dated 4 December 2012
* an extract of a letter from the Department of Veterans Affairs (VA), dated 18 March 2013, concerning the VA's decision on his claim for service-connected compensation
* a letter from Grantham University, dated 27 May 2014, that shows he was awarded a Bachelor of Science degree 27 May 2014
* a 13-page typed statement, titled "Cold Hard Facts (Mxxxxx Hxxxxx Case AR 20130015948).txt"
* a 7-page typed statement, titled "Affidavit Mxxxxx M Hxxxxx," dated  22 December 2013
* a 7-page timeline of events, titled "SSG(P) Hxxxxx Mxxxxx Timeline at the [98th Signal Battalion Expeditionary (ESB)] 2010-2011"
* a 12-page typed statement, titled "ABCMR Case File 20130015948 (Mxxxxx M Hxxxxx)"


* numerous email messages (including attachments), as follows:

* 3 pages submitted on 4 December 2013
* 13 pages submitted on 19 December 2013
* 24 pages submitted on 19 December 2013
* 13 pages submitted on 19 December 2013
* 20 pages submitted on 23 December 2013
* 27 pages submitted on 9 April 2014
* 2 pages submitted on 21 April 2014
* 2 pages submitted on 28 April 2014  
* 6 pages submitted on 1 May 2014 
* 3 pages submitted on 16 May 2014  
* 9 pages submitted on 16 May 2014  

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 ABCMR in Docket Number AR20120007090, dated 11 July 2013.

2.  The applicant provides numerous documents, identified in paragraph 3b above, which constitute new evidence not previously considered by the Board.  Therefore, this new evidence warrants consideration by the Board.

3.  On 27 April 1998, the applicant enlisted in the USAR.  On 26 May 1998, he entered active duty for the purpose of completing his initial entry training.  

4.  On 10 November 1998, upon the completion of his initial entry training, he was awarded MOS 63J (Quartermaster and Chemical Equipment Repairer), which was later redesignated MOS 91J.  He was honorably released from active duty and returned to his USAR unit of assignment.

5.  On 6 February 2001, he was discharged from the USAR for the purpose of immediate enlistment in the Regular Army.

6.  On 7 February 2001, he enlisted in the Regular Army.  On 3 October 2003, he was promoted to the rank/grade of sergeant (SGT)/E-5.  On 5 August 2005, he was honorably discharged from the Regular Army by reason of hardship.

7.  On or about 26 January 2006, after a short break in service, he enlisted in the USAR.  On or about 10 April 2006, he entered the USAR AGR Program and was assigned to Detachment 1, 369th Chemical Company in Waco, TX.

8.  On 1 November 2006, he was promoted to the rank/grade of SSG/E-6.

9.  On or about 10 September 2007, he was reassigned to the U.S. Army Recruiting Battalion in Los Angeles, CA.

10.  On or about 4 May 2009, he was reassigned to Headquarters and Headquarters Company, 98th ESB in Mesa, AZ.

11.  Orders R-03-083985, issued by, HRC on 31 March 2010, discharged him for the purpose of reenlistment in the USAR and simultaneously reenlisted him and ordered him to active duty in an AGR status for a 3-year period, effective 26 May 2010.

12.  He received numerous Developmental Counseling Forms between May 2010 and October 2010 on topics related to:

* sub-standard performance and conduct
* suicidal ideations
* annual training attendance
* failure to make scheduled payments on his government credit card
* displaying disrespect toward commissioned officers and senior noncommissioned officers, including communicating a threat
* disobeying a direct order from his battalion commander 
* mobilization and deployment

13.  On 2 June 2010, his battalion commander notified him that he was being referred for a mental health evaluation.  On or about 14 June 2010, he underwent a command-directed mental health evaluation.  On 17 June 2010, the evaluating psychologist diagnosed him with adjustment disorder with disturbance of emotions and conduct; however, he recommended no further precautions or additional supervision.  Additionally, he stated:

No change in duty status is recommended based on today's evaluation.  This Soldier has the mental capacity to understand and participate in the proceedings, was mentally responsible, and meets the psychiatric retention requirements of Chapter 3, AR (Army Regulation) 40-501 (Standards of Medical Fitness, Medical Standards for Retention and Separation, including Retirement). 

14.  On 10 August 2010, he received a permanent physical profile for asthma and depression with anxiety.  The examining physician assigned him a numerical rating of "3" in the PULHES factor "P" (Physical Capacity or Stamina), indicating he had one or more medical conditions or physical defects that may have required significant limitations. 
 
   a. Item 4c (Profile Type – If a Permanent Profile with a 3 or 4 PULHES, does the Soldier Meet Retentions Standards in accordance with (IAW) Chapter 3, Army Regulation 40-501) of his Physical Profile is void of a checkmark, indicating the examining physician did not assess his ability to meet the retention standards of Army Regulation 40-501, Chapter 3, or his need for further evaluation by an MEB/PEB. 

   b. Item 10 (Other: e.g. Functional Limitations and Capabilities and Other Comments…) of his Physical Profile contains the entry "SM (Service Member)'s asthma restricts the wear of chemical protective mask."

15.  His record is void of documentation that shows he was referred to, or evaluated by, either an MMRB or an MEB.

16.  On or about 27 September 2010, the applicant was notified of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200, Chapters 13 and 14.  On 2 October 2010, the applicant acknowledged receipt of the notification memorandum.  

17.  On 5 January 2011, the applicant underwent a medical evaluation and physical exam at the 56th Medical Operations Squadron, Luke Air Force Base, AZ.  Based on the findings of the medical examination and a review of the applicant's medical records, the examining PA-C recommended the applicant's return to full duty without any restrictions.  The PA-C further stated:

* the applicant had no conditions that would warrant duty assignment limitations or any notation in his permanent medical record reflecting physical or mental impairment
* he should undergo a pulmonary function test to properly gauge the severity of his asthma – this test should be repeated annually

18.  On 21 January 2011, an administrative separation board convened to consider the applicant's separation under the provisions of Army Regulation   635-200, Chapters 13 and 14.  The board found that/recommended:

* the applicant did, on or about May 2010, present, demonstrate that he was unqualified for further military service because of unsatisfactory performance
* the applicant did, on or about May 2010, present, demonstrate a pattern of misconduct consisting of discreditable conduct and conduct prejudicial to good order and discipline 
* the applicant did, on or about May 2010, present, demonstrate the commission of a serious offense, whereby the specific circumstances of the offense warranted separation and a punitive discharge
* the applicant's separation from the military with an under honorable conditions (general) characterization of service

19.  On 3 February 2011, the Chief, Administrative Law, 335th Signal Command (Theater), provided a legal review of the administrative separation board process, wherein he determined/recommended:

* the proceedings were legally sufficient
* no errors in the proceedings were noted
* sufficient evidence supports the findings
* the recommendation is consistent with the findings
* the separation authority approve the board's findings and recommendation and direct the applicant's discharge from the Army with an under honorable conditions (general) discharge

20.  On 9 February 2011, the separation authority approved the board's findings and recommendation and directed the applicant receive an under honorable conditions (general) discharge. 

21.  On 25 February 2011, he underwent a Behavioral Health Evaluation at the Raymond W. Bliss Army Health Center at Fort Huachuca, AZ, wherein he was psychiatrically cleared for any administrative action deemed appropriate by his chain of command.

22.  On 6 April 2011, the applicant received a new physical profile, wherein the examining physician assigned him a numerical rating of "1" in each of the PULHES factors, indicating he was medically cleared to return to duty without restriction.  

   a. Item 1 (Medical Condition) of his DA Form 3349 contains the entry:

History of Asthma – No Limitations (PFTs (pulmonary functional test) normal values; History of Depression with Anxiety – Resolved.

   b. Item 8 (Functional Limitations and Capabilities and Other Comments) of his DA Form 3349 contains the entry:

SM (service member) sought PFT with the 56th Medical Ops (Operations) Squadron, Luke AFB, AZ, 20110110, which came back with normal spirometric values.  Medical evaluation was also performed in such clinic with the determination of "return to duty without any restriction."  Annual routine surveillance exam with PFTs also suggested gauging the severity of his asthma.  SM will not be assigned any limitations.

23.  On 6 May 2011, the applicant was discharged from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct.  The DD Form 214 he was issued shows he completed a total of 10 years and 18 days of active military service and 2 years, 6 months, and 2 days of inactive military service.  It further shows he received an under honorable conditions (general) characterization of service. 

24.  The applicant's separation physical is not available for review.

25.  On 8 July 2011, after a careful review of his application, military records, and all other available evidence, the Army Discharge Review Board determined he was properly and equitably discharged and denied his request for a discharge upgrade.

26.  He provides numerous documents that constitute new evidence not previously considered by the Board.

   a. Extracts of 3 different Records of Proceedings, documenting previously-boarded ABCMR cases that the applicant submits as case precedents.  

       (1)  He provides an extract of the Supplemental Record of Proceedings pertaining to ABCMR Docket Number AR20050001090, dated 3 March 2005, which appears to amend an earlier ABCMR case decision although the Docket Number cited does not match the same case in the ABCMR archives.  Based on a review of the case the applicant provided, it appears the case involves a USAR Soldier who was separated prior to receiving MEB/PEB consideration.  It cannot be determined whether or not the Soldier's separation was based on an administrative chapter action IAW Army Regulation 635-200, as was the case with the applicant.

       (2)  ABCMR Docket Number AR20110004434, dated 12 January 2012, which involves an Army National Guard (ARNG) Soldier who was separated for being medically unfit for retention prior to receiving MEB/PEB consideration.  It does not appear this Soldier's separation was based on an administrative chapter action IAW Army Regulation 635-200, as was the case with the applicant.
       (3)  ABCMR Docket Number AR20110023388, dated 4 December 2012, which involves another ARNG Soldier who was separated for being medically unfit for retention prior to receiving MEB/PEB consideration.  It does not appear this Soldier's separation was based on an administrative chapter action IAW Army Regulation 635-200, as was the case with the applicant.

   b. An extract of a letter from the VA, dated 18 March 2013, concerning the VA's decision on his claim for service-connected compensation.  The letter reveals his combined evaluation was 30 percent (%) or more disabling; however, it does not state what conditions his evaluation was based on, or the total disability percentage he was awarded.

   c. A letter from Grantham University, dated 27 May 2014, which shows he was awarded a Bachelor of Science degree on 27 May 2014.

   d. Numerous multi-paged typed statements, wherein he provides his recollection, in the form of timelines and narratives, of the events that led to his administrative separation, takes issue with his prior command's actions, and implores the Board to reconsider his case.

   e. Numerous email messages (including attachments), wherein he provides his recollection of the events that led to his administrative discharge.  He takes issue with his prior command's actions and implores the Board to reconsider his case.

27.  Army Regulation 40-400 (Patient Administration) assigns responsibilities and provides guidance on patient administration in Army Regional Medical Commands and MTFs.  Chapter 7 provides guidance on military personnel physical disability processing.  Paragraph 7-1 states:

* physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the PDES
* Soldiers issued a permanent profile with a numerical designator of 3 or     4 in one of the physical profile factors, who meet retention standards, are referred to the MMRB
* if the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB Liaison Officer (PEBLO)
* MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status

28.  Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  

   a. Chapter 3 provides guidance on medical conditions and physical defects that may render a Soldier unfit for further military service.  Paragraph 3-27 (Miscellaneous Respiratory Disorders), sub-paragraph a(2), provides that chronic asthma is cause for a permanent P-3 or P-4 profile and MEB referral if it prevents an afflicted Soldier from wearing a protective mask. 

   b. Table 8-2 (Schedule of Separation Medical Examination or Separation Physical Assessment) requires a medical examination for enlisted Soldiers being processed for separation under the provisions of Army Regulation 635-200, chapter 14.

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

   a. Paragraph 1–32 (Separation and Medical Examinations) provides that commanders will ensure Soldiers initiated for separation under this regulation, who are required to obtain a physical examination, obtain such.  Physical examinations and mental health evaluations will comply with Army Regulation 40-501 and other policy guidance issued by the Surgeon General and MEDCOM. In addition to medical examinations, mental status evaluations conducted by a psychologist (or master-level, licensed clinical social worker), are required for Soldiers being processed for separation under chapters 13, 14 and 15.

   b. Paragraph 1–33 (Disposition through Medical Channels) provides that, except in separation actions under chapter 10, disposition through medical channels takes precedence over administrative separation processing.  When the MTF commander or attending medical officer determines a Soldier being processed for administrative separation under chapters 7, 14, or 15, does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.
If the MEB findings indicate that referral of the case to a 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 PDES when action under the Uniform Code of Military Justice (UCMJ) has not been initiated, and one of the following has been determined:

      	(1)  the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination; and
   
   	(2) other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

   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.

   d. 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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

   e. Paragraph 14-12b states a pattern of misconduct consists of one of the following:

		(1)  discreditable involvement with civil or military authorities; or

		(2)  discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army Regulations, civil law, and time-honored customs and traditions of the Army.

   f. Paragraph 14-12d states that before taking action against a Soldier, because of minor disciplinary infractions or a pattern of misconduct, commanders will ensure the Soldier received adequate counseling and rehabilitation.

   g. When a Soldier's conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his/her deficiencies.  At least one formal counseling session is required before separation proceedings may be initiated for one or more of the reasons specified above.  In addition, there must be evidence that the Soldier's deficiencies continued after the initial formal counseling.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's numerous requests were carefully considered.  

2.  His primary contention is that the Army failed to properly and adequately consider his medical conditions prior to discharge.  The Army was responsible to ensure he was referred to an MEB after he received his permanent profile; however, it failed to do so.  Consequently, and contrary to Army Regulations, he was discharged without the benefit of consideration by the Army PDES.  

3.  The evidence of record shows he received a permanent profile in August 2010, based on the examining physician's concerns regarding his ability to properly don a protective mask in a chemical environment, given his asthmatic condition.

4.  It is unclear, based on a review of his record and the evidence he provided, whether or not he was properly referred to the Army PDES.  However, it is clear that subsequent medical exams, conducted prior to the completion and approval of his discharge action, determined his mental and physical issues had improved and no longer warranted duty limitations or restrictions.

5.  The evidence of record shows he had performance and conduct issues during most of calendar year 2010.  He was counseled on his performance and conduct on numerous occasions.  His did not overcome his deficiencies, and eventually, his command recommended his discharge under the provisions of Army Regulation 635-200, chapters 13 and 14.

6.  He was represented by counsel, and he benefitted from an administrative separation board, in which he was personally present to argue the points he has brought forth in this case.  His administrative discharge received a legal review, and all aspects of his administrative discharge appear to have been adhered to.
Additionally, he submitted a request for relief to the ADRB, and a previous case to the ABCMR, each based on the contentions he raised in this case; however, in each instance his request was denied.  

7.  His contention that his medical conditions warranted referral to an MEB is noted; however, subsequent medical examinations, conducted prior to the approval of his separation action, cleared him of any medical or mental conditions without further duty limitations.  

8.  Given the noted improvement in his mental and physical condition prior to his actual separation, it is more apparent that processing through the Army PDES would not have resulted in referral to a PEB, and the separation authority was correct in separating him as he did.  

9.  Accordingly, there is no basis for voiding of his discharge and reinstating him into the USAR AGR Program, or for processing him through the Army PDES, or for promoting him to the rank/grade of SFC/E-7, or paying him back pay and allowances since he was discharged, or lastly, for correcting item 28 of his
DD Form 214, for the period ending 6 May 2011, to show he was discharged for medical disability versus a pattern of misconduct.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120007090, dated 11 July 2013.



      _______ _   _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)                                         AR20130015948



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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