IN THE CASE OF:	   

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20130020964 


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, in effect, retirement by reason of physical disability.

2.  The applicant states:

* He should have been allowed to leave the military under the medical retirement orders he was issued in conjunction with his Medical Evaluation Board (MEB) findings
* When he was brought before a board of inquiry (BOI) for an incident, his counsel was not present
* After requesting a delay so he could be properly represented, he was denied and the board proceeded
* He believes that if he had been properly represented in the BOI he would not have received the type of discharge he received

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Rebuttal to BOI and request for corrective action in his case, dated 14 March 2011
* Incident/Investigation Report, dated 26 June 2010
* Benton Police Department Voluntary Statement, dated 26 June 2010
* Clinical Social Worker Memorandum, dated 25 June 2010
* Affidavit of Colby C. Vxx, dated 14 March 2011
* Serious Incident Report
* Redacted Serious Incident Reports
* Email between his counsel, members in his chain of command, and himself
* Self-authored statement (undated)
* Request for continuance of BOI, dated 1 February 2011
* Denial of request for continuance of BOI (undated)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Physical Disability Evaluation System (PDES) Pilot Election Page
* DA Form 5893 (Soldier's MEB/PEB Counseling Checklist)
* Department of Veterans Affairs (VA) Memorandum, dated 22 February 2011
* Disability Evaluation System Proposed Rating, dated 18 February 2011
* Orders 069-0167, dated 10 March 2011

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Arizona Army National Guard (AZARNG), the applicant accepted an appointment as a warrant officer one (WO1) in the AZARNG on 26 July 2005.  He was promoted to chief warrant officer two (CW2) on 16 November 2007.

2.  On 16 September 2008, the applicant was honorably discharged from the AZARNG.  He was ordered to active duty in the Regular Army in a voluntary indefinite status on 17 September 2008.

3.  The applicant was placed on a temporary physical profile on 19 May 2010 for post-traumatic stress disorder (PTSD) and major depression.  His functional limitations included no access to weapons, no deployments, no remote assignments, and no simulated combat.

4.  On 5 November 2010, the applicant accepted nonjudicial punishment for committing an assault on his wife on 26 June 2010, by pointing at her a 12-gauge shotgun and a switchblade knife.

5.  On 9 November 2010, he received a General Officer Memorandum of Reprimand (GOMOR) for assaulting his wife on 26 June 2010.

6.  The applicant was notified on 24 November 2010 that action to eliminate him from the Army was being initiated.  He was told he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2, because of acts of personal misconduct, professional dereliction, conduct unbecoming an officer, and derogatory information.  He was advised of the rights available to him.  He acknowledged receipt of the notification on 29 November 2010.

7.  In a memorandum through his chain of command dated 29 December 2010, the applicant elected to appear before a BOI in accordance with chapter 4 of Army Regulation 600-8-24.

8.  On 21 January 2011, the applicant was notified that a BOI was convening on 1 February 2011 to consider a recommendation for his involuntary separation.  In a Memorandum for Record dated 1 February 2011, the applicant requested a continuance of the BOI in order to allow the presence of his previously-retained civilian counsel.  The board recorder stated that they had followed the regulation and had given the necessary time allotted to the applicant to prepare for the board.  The recorder stated that the applicant had counsel present to represent him and that witnesses were there on standby to continue on with the board.  After reviewing the delay request, the board unanimously determined that the government provided adequate notice as provided under Army Regulation      600-8-24 sufficient to deny the delay request.  After considering all of the evidence before it, the board found by a preponderance of evidence that the applicant committed an assault of his wife by pointing at her a dangerous weapon, to wit: a 12-gauge shotgun and a switchblade knife.  The board recommended that the applicant be separated from military service with the issuance of a general discharge, under honorable conditions.

9.  A Disability Evaluation System Proposed Rating dated 18 February 2011, prepared by the VA, shows the following proposed ratings for the following conditions:

* PTSD and Depressive Disorder secondary to complicated bereavement – 50 percent
* Bilateral Lumbar Paraspinal Muscle Strain – 10 percent
* Right Retropatellar Syndrome with Patella Tendinitis – 10 percent
* Left Retropatellar Syndrome with Patella Tendinitis – 10 percent
* Right Ankle Sprain – 10 percent
* Left Ankle Sprain – 10 percent
* Tinnitus – 10 percent
* Tonsillectomy – 0 percent
* Scar, Residual of Right Cervical Excisional Lymph Node Biopsy – 0 percent
* Headaches Syndrome – 0 percent

10.  The VA proposed a combined service-connected disability rating of 80 percent.


11.  The applicant's MEB Proceedings are not available.  His records show that on 25 February 2011, a PEB convened to determine his fitness for retention on active duty.  The PEB recommended a 50 percent service-connected disability rating for PTSD and placement on the Temporary Disability Retired List (TDRL).

12.  On 28 February 2011, the applicant acknowledged receipt of a full copy of the BOI and authenticated transcript.  He also acknowledged that he had 7 days from the date of receipt to submit any rebuttal matters to the General Officer Show Cause Authority (GOSCA) for consideration.

13.  On 10 March 2011, Orders 069-0167 were published releasing the applicant from active duty due to physical disability and placing him on the TDRL effective 7 June 2011.

14.  On 14 March 2011, the applicant's counsel submitted a rebuttal to the BOI stating:

* The applicant suffered psychological injury during a deployment to Iraq as a helicopter pilot, which resulted in him being permanently grounded as an aviator
* He was diagnosed with PTSD and depressive disorder as a result of his combat assignment in Iraq
* After returning to the United States, the applicant was being treated for these disorders and continued to be grounded
* At the time of his altercation with his wife the applicant was still being treated for PTSD and related disorders with various medications
* The applicant continued to become more and more delusional and irrational
* One day before the incident, the applicant's psychologist diagnosed him with PTSD with a very high risk rating and recommended him for assignment with the Warrior Transition Battalion
* Due to his mental state and combined with his failure to take all of his prescribed medications or the drinking of alcohol (or both) the applicant became unstable, delusional, and paranoid
* The applicant was timely notified of the BOI but he (counsel) was not
* Statements made during the BOI that the government had no prior notice that he was representing the applicant were completely inaccurate
* The defense attorney was not prepared to effectively represent the applicant and he did not receive effective assistance of counsel
* The PEB recommended a 50 percent disability rating for PTSD and along with other medical conditions they recommended a combined service-connected disability rating of 80 percent 

15.  A legal review of the BOI was completed on 1 April 2011.  The Judge Advocate determined that the BOI proceedings complied with the legal requirement, no appointing errors or substantial errors were made, sufficient evidence supported the board's findings, and the board's recommendations were consistent with the findings.  The Judge Advocate recommended that the GOSCA forward by personal endorsement the original report of the BOI proceedings to the Commander, U.S. Army Human Resources Command (HRC) with a recommendation of approval of the BOI's recommendation of elimination and a recommendation of the type of discharge to be issued.

16.  On 11 May 2011, Orders 131-0121 were published revoking Orders 069-0167.

17.  On 27 July 2011, the Army Board of Review for Eliminations convened to review the action of the BOI, which recommended elimination of the applicant.  The board found that the government established by a preponderance of the evidence that the applicant on or about 26 June 2010, committed an assault upon his wife by pointing at her a dangerous weapon, to wit: 12-gauge shotgun and a switchblade knife.  The board recommended that he be eliminated from the Army with a general characterization of service.

18.  On 9 August 2011, the Acting Deputy Assistant Secretary of the Army (Review Boards) approved the recommendations by the BOI and the Board of Review to eliminate the applicant from the Army based on misconduct and moral or professional dereliction and derogatory information.  The Acting Deputy Assistant Secretary of the Army (Review Boards) considered the findings of the PEB in making his decision but elected to eliminate him for misconduct.

19.  On 25 August 2011, the applicant was discharged under the provisions of Army Regulation 600-8-24, chapter 4-2B, due to unacceptable conduct.  He received a general discharge.

20.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the basic authority for officer transfers and discharges.  

     a.  Paragraph 1-23 governs referral of officers for physical disability evaluation.  It states if a commissioned or warrant officer is being processed for release from active duty, separation, or retirement, or has been referred for elimination action, when it is determined that the officer having a medical impairment does not meet medical retention standards, the officer will be processed as set forth in subparagraphs a through d.  Subparagraph 1-23a states that an officer under investigation for an offense chargeable under the Uniform Code of Military Justice (UCMJ) that could result in dismissal or punitive discharge may not be referred for or continue disability processing.

     b.  When a commissioned or warrant officer, as applicable, is being processed for one of the actions listed in (1) through (5), below, the officer will be processed in accordance with the provisions of this regulation and through the MEB/PEB system.  If a physical disability evaluation results in a finding of physical unfitness, both actions will be forwarded by the Commanding General, HRC, to the Secretary of the Army or his designee for determination of appropriate disposition.

      (1) Referral to the Department of the Army Active Duty Board (DAADB) except when the DAADB is convened as a result of an imposed reduction in force;

          (2) Involuntary REFRAD due to civil conviction or moral turpitude;

          (3) Resignation for the good of the service;

          (4) Referral for elimination under chapter 4; or

          (5) Request for separation, resignation, or retirement in lieu of elimination.

     c.  Chapter 4 outlines the policy and procedure for the eliminating officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and the interest of national security.  

	c.  Paragraph 4-24 states an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate):  (1) submit a resignation in lieu of elimination; (2) request discharge in lieu of elimination; or (3) apply for retirement in lieu of elimination if otherwise eligible.  When an option is elected, elimination proceedings will be suspended pending final action on the option elected

DISCUSSION AND CONCLUSIONS:

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

2.  Although he contends he did not have his counsel present, the available evidence shows he was represented by counsel during the BOI proceedings.  His contention that had he been "properly represented" he would not have received the type of discharge he received is speculation at best.  The board considered all of the available evidence and determined that he did in fact commit the offense of assaulting his wife by pointing at her a 12-gauge shotgun and a switchblade knife.

3.  The BOI determined that the applicant was properly notified of the scheduled date of the board.  The fact that he was denied a delay in the board proceedings does not show error or injustice in the actions taken by the Army.

4.  He was referred for elimination for misconduct under the provisions of Army Regulation 600-8-24.  In rendering his decision on the elimination action, the Acting Deputy Assistant Secretary of the Army (Review Boards) properly exercised his option to eliminate the applicant for misconduct versus allowing him to be placed on the TDRL.

5.  The applicant was properly discharged in accordance with the applicable regulation.  The type of discharge he received appropriately reflects his overall record of service.  In view of the foregoing, his request should be denied.

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)                                         AR20130020964





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ABCMR Record of Proceedings (cont)                                         AR20130020964



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