IN THE CASE OF:	

		BOARD DATE:	    24 June 2014

		DOCKET NUMBER:  AR20130016143 


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 records to show he was medically retired.

2.  The applicant states:

	a.  In March 2013, he was honorably discharged at the expiration of his term of service (ETS).

	b.  He served in the Army for 6 1/2 years as an officer and he fought in Operation Iraqi Freedom.

	c.  He is a Disabled American Veteran (unofficially) and he was severely injured in October 2010.

	d.  He suffers from Traumatic Brain Injury (TBI), Post-Traumatic Stress Disorder (PTSD), "Ambitions" (i.e., amputation) of limbs, and herniated discs in his lower back.

	e.  He completed the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process on 23 May 2013.

	f.  He has spent over 2 years in the Warrior Transition Brigade, Charlie Company, Fort Hood, Texas.

	g.  He believes his company, battalion, and brigade leadership unjustly prevented him from being medically retired.

3.  The applicant provides:

* DA Form 4037 (Officer Record Brief)
* DA Form 67-9 (Officer Evaluation Report)
* DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet)
* DA Form 199 (PEB Proceedings), dated 10 May 2012
* Department of Veterans Affairs (VA) Disability Evaluation System Proposed Rating, dated 4 May 2012
* DA Form 3947 (MEB Proceedings), dated 5 October 2011

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Alabama Army National Guard, the applicant accepted an appointment in the Regular Army on 12 June 2008, in the rank of second lieutenant, Quartermaster Corps.  He was promoted to first lieutenant on 19 December 2009.

2.  On 1 September 2010, the applicant's records were flagged and he was counseled due to allegations of fraternization.  During the counseling, the applicant's commanding officer told him that should he be engaged in an inappropriate relationship with the enlisted Soldier he was directing it to cease immediately.  He was instructed and encouraged to cease any contact with the enlisted Soldier.  He was told that should his conduct continue to indicate he may be engaged in an inappropriate relationship, he (his commander) would consider implementing more stringent actions that may include reprimand, reassignment, or adverse action.

3.  On 17 December 2010, the applicant accepted nonjudicial punishment (NJP) for the following offenses:

* Three specifications of disobeying a lawful command from his superior commissioned officer to cease contact with an enlisted Soldier
* Making a false official statement
* Fraternization

4.  His punishment consisted of a written reprimand and a forfeiture of pay.  He received the General Officer Memorandum of Reprimand (GOMOR) on 22 December 2010.

5.  On 21 June 2011, the applicant was considered for promotion to captain, but was not fully qualified and was not among the best qualified for promotion to meet the needs of the Army.  He requested reconsideration for promotion and his records were referred to a Department of the Army Promotion Review Board.  He was told that the Secretary of the Army decided to remove his name from the Fiscal Year 2011, Captain, Army Competitive Category, Promotion Selection List.

6.  On 5 July 2011, the applicant was apprehended by a Harker Heights, Texas, police officer for driving an automobile while impaired.  He admitted to consuming six mixed drinks and registering a 0.05 breath alcohol content on an intoxilyzer.  He wore a Butrans Transdermal patch, which the manufacturer specifically warns against combining with alcohol.

7.  The applicant's records were flagged on 7 September 2011.

8.  On 5 October 2011, an MEB convened to determine whether the applicant should be referred to a PEB for consideration.  The MEB's evaluation included the following diagnoses:

* PTSD, chronic – does not meet medical retention standards
* Depressive disorder, not otherwise specified – does not meet medical retention standards
* Right hand 3rd digit fusion, 4th digit ray resection, and 5th digit amputation status post (S/P) crush injury with residual pain and loss of motion – does not meet medical retention standards
* Crushing injury right hand, S/P Open Reduction Internal Fixation (ORIF), reconstruction, partial amputation and delayed ray amputation/resection of fourth metacarpal and tip of fifth metacarpal, gross residual pain and motion limitation
* Tenosynovitis, right fourth digit, with soft tissue abscess in the third and fifth metacarpal
* Migraine headaches – does not meet medical retention standards
* Residual of mild to moderate TBI secondary to the motorcycle accident from a deer hit in October 2010 with postconcussive headaches, moderate to severe, photosensitivity and phonosensitivity
* Right hand bursitis – meets medical retention standards
* Right ankle cavitation – meets medical retention standards
* Tinnitus – meets medical retention standards
* Insomnia – meets medical retention standards

9.  The MEB recommended that the applicant be referred to a PEB for consideration.

10.  On 27 January 2012, he received a GOMOR, for driving an automobile while impaired.

11.  On 4 May 2012, a VA Disability Evaluation System (DES) Proposed Rating was completed on the applicant under the DES Pilot Program.  This program is an initiative between the Department of Defense (DOD) and the VA and its purpose is to assign evaluations to the service member's unfit conditions for member's potential entitlement to VA disability compensation.  The VA made the following PEB referred for Disability Evaluation System (DES) rating proposals:

* PTSD and depressive disorder – 100 percent
* Migraine headaches – 50 percent
* S/P ORIF reconstruction, delayed ray amputation/resection of the ring finger (4th metacarpal) with tenosynovitis and phantom pain – 20 percent
* Partial amputation and reconstruction of the pinky finger (5th metacarpal) with soft tissue abscess and limitation of motion in the long (3rd metacarpal) and pinky fingers – 10 percent
* Painful motion of the index (2nd metacarpal) finger (Dominant) – 10 percent
* Scars, right hand and fingers (dominant) – 0 percent
* TBI secondary to motorcycle accident with post-concussion syndrome – 0 percent

12.  The VA referred to the PEB a combined service-connected disability evaluation system proposed rating of 100 percent.

13.  An informal PEB convened on 10 May 2012 to determine the applicant's fitness for retention in the Army.  The PEB made the following findings service connected disability ratings:

* PTSD with major depressive disorder – 100 percent
* Migraine headaches, residuals of TBI – 50 percent
* S/P, ORIF reconstruction, delayed ray amputation/resection of the ring finger (4th metacarpal) – 20 percent
* Dominant right had 3rd digit fusion and 5th digit amputation – 10 percent
* Painful motion, second metacarpal dominant right - 10 percent
* TBI - zero percent
* Scars - zero percent

14.  The PEB found the applicant unfit for continued service.  The PEB recommended placement on the temporary disability retired list (TDRL) with a combined service-connected disability rating of 100 percent and reexamination during February 2013.
15.  The applicant concurred with the PEB's findings and recommendation and he waived his right to a formal hearing of his case.

16.  On 30 August 2012, the applicant was counseled as a result of a urinalysis given on 31 July 2012 that tested positive for tetrahydrocannabinol (THC).

17.  On 12 October 2012, the applicant accepted NJP for wrongful use of marijuana.

18.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-9, due to non-selection for permanent promotion.  He completed 4 years, 8 months, and 20 days of net active service this period.  He electronically signed his DD Form 214.

19.  A review of the applicant's records failed to show that he was ever placed on the TDRL as recommended by the PEB.

20.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag), provides the policy for flagging actions.  It states that a flag will be submitted when an unfavorable action or investigation is started against a Soldier and will be removed when the Soldier’s status changes to favorable.  It states that a properly-imposed flag prohibits certain personnel action such as unqualified resignation, voluntary retirement, or discharge.

21.  Army Regulation 600-8-24, paragraph 5-9 provides rules for processing separation of commissioned officers and chief warrant officers who are twice nonselected for active duty list promotion by a Headquarters, Department of the Army Centralized board.  It states commissioned officer and chief warrant officers on the active duty list twice non-selected for promotion to the grade of captain, major, lieutenant colonel, CW3 or CW4 will be involuntarily released or discharged unless they are:

* Selectively continued
* Within 2 years of retirement
* Retired
* Health professions officer

22.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of SFK signifies mandatory retirement for physical disability as authorized under Army Regulation 635-40, paragraph 4-24b(2).
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  He states that he was discharged at his ETS and he was not.  He was a first lieutenant in the RA and he had no ETS.

3.  Although he was processed for retirement through medical channels, the available evidence shows that the applicant was under a flag which prohibited him from favorable personnel action such as retirement.  There is no evidence in the available record showing that the flag was ever removed prior to his discharge.  However, it appears that his last flag should have been removed on or about 3 November 2012.

4.  He was discharged as a result of being twice non-selected for promotion to captain.  There is no evidence in the available record showing he was actually placed on the TDRL as recommended by the PEB.

5.  The evidence clearly shows that his records were flagged as a result of his numerous and consistent acts of misconduct.  However, he was not discharged due to misconduct.  Further, it appears any flagging action should have been removed on or about 3 November 2012.  He was discharged due to being a two-time nonselect for promotion on 1 March 2013.  It appears he was eligible for continuation of the PEB process.

6.  In view of the above, it would be appropriate to correct the applicant's records to show he was retired in the rank of 1LT under the authority of Army Regulation 635-40, paragraph 4-24b(2) due to temporary disability, with an SPD of SFK.

7.  Furthermore, the applicant should be aware of the requirement for periodic reevaluations of his medical condition.

8.  A Survivor Benefit Plan (SBP) election must be made prior to the effective
date of retirement or the SBP will, by law, default to automatic SBP spouse
coverage (if married).  This correction of records may have an effect on the
applicant's SBP status/coverage.  The applicant is advised to contact his
nearest Retirement Services Officer (RSO) for information and assistance
immediately.  A listing of RSOs by country, state, and installation is
available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.
The RSO can also assist with any TRICARE questions the applicant may have.


BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing on his DD Form 214 that he was retired under the authority of Army Regulation 635-40, paragraph 24b(2) due to a temporary disability, with an SPD of SFK; and

	b.  paying him any and all retired pay due him as a result of this correction.



       _   _____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)                                         AR20130016143



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ABCMR Record of Proceedings (cont)                                         AR20130016143



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