IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140011532 


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, an upgrade of his character of service from under honorable conditions (general) to honorable and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and discharge orders to show he was medically retired.

2.  The applicant states he was discharged at the conclusion of his Integrated Disability Evaluation System (IDES) process due to his involvement in the bondage and discipline (BD), dominance and submission (DS), sadism and masochism (SM) (BDSM) scene.  He was administratively discharged with an under honorable conditions (general) character or service.  His appeal to the General Court-Martial Convening Authority (GCMCA) for medical retirement was denied.  The Army Discharge Review Board (ADRB) heard his appeal on 
10 June 2014, but they declined to upgrade his discharge.

	a.  He believes his discharge in lieu of a medical retirement was unjust.  He did engage in a lifestyle that is at odds with the Army's values; however, he served honorably for close to a decade.  He was never in trouble and was rated highly until the end of his service when he exposed his involvement in the BDSM subculture to his former commander when requesting off-duty employment related to that subculture.

	b.  He was rated as 70 percent (%) disabled by the Department of Defense (DOD) and 90% disabled by the Department of Veterans Affairs (VA).  He gave the Army a decade of hard work, his youth, and his health.  He did not harm or threaten anyone, steal anything, fraternize, use or distribute drugs, discuss his involvement in the kink scene with colleagues, or commit any crime for that matter.  More or less it was a failure to live up to the Army's standards.  He accepts that the Army no longer wanted him in service due to his involvement in a lifestyle it does not feel reflects its values.  However, to deny him medical retirement after a decade of service and being as disabled as he has become from his service to his country is unconscionable.  He was a good Soldier and noncommissioned officer (NCO).  He loves the Army and although he would make different choices in his personal life, he would serve each and every day the same.  He could have made better decisions, but he does not feel the decisions he made equal denying him the rights and privileges of a medically retired veteran.

	c.  First and foremost his three special needs children have lost their services and insurance.  Due to his disabilities from service his children have lost out on a father who is able to rough house with them or be fully emotionally there for them at times due to psychiatric issues incurred from service.  They are the uppermost thing in his mind in requesting medical retirement for his service.  His disability has narrowed the types of jobs he is able to perform.  In addition, his general discharge has made finding the work he can do even more difficult.  Upgrading his character of service and allowing him to medically retire would lift a huge burden off his shoulders.  His time in service is done.  It was already done due to his declining health.  He begs the board consider clemency in his case, not just for him, but for his family.

3.  The applicant provides:

* 4 self-authored statements
* a certificate of appreciation
* 2 DA Forms 638 (Recommendation for Award)
* 5 DA Forms 2166-8 (NCO Evaluation Report (NCOER))
* a letter of confirmation of attendance and participation in treatment, dated 23 April 2013
* VA IDES Proposed Rating, dated 30 October 2013
* DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings)
* Enlisted Record Brief (ERB)
* newspaper article about a Soldier’s remains found in Iraq
* 51 letters of recommendation/support/character references

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 September 2004.  He completed his initial entry training and was awarded military occupational specialty 35N (Signal Intelligence Analyst).  The highest rank/grade he attained while serving on active duty was staff sergeant (SSG)/E-6.

2.  On or about 14 October 2010, he was assigned to Fort George G. Meade, Maryland.

3.  His record contains a series of five noncommissioned officer evaluation reports (NCOER) dated from 1 November 2007 to 26 November 2013.

	a.  The first four NCOERs contain satisfactory ratings and show that during the rating period:

* 1 November 2007 to 25 September 2008, his Rater rated him as "Among the Best" and his Senior Rater rated him as "2-Sucessful" for overall performance and "1-Superior" for overall potential
* 24 April 2009 to 11 October 2011, his Rater rated him as "Fully Capable" and his Senior Rater rated him as "2-Sucessful" for overall performance and "2-Superior" for overall potential
* 12 January 2011 to 21 December 2011, his Rater rated him as "Fully Capable" and his Senior Rater rated him as "2-Sucessful" for overall performance and "2-Superior" for overall potential
* 1 January 2012 to 7 December 2012, his Rater rated him as "Fully Capable" and his Senior Rater rated him as "2-Sucessful" for overall performance and "2-Superior" for overall potential

	b.  The 5th NCOER shows that for the rating period of 8 December 2012 to 26 November 2013:

		(1)  Part IV (Army Values/Attributes/Skills/Actions), sub-paragraph a. (Army Values) contains checkmarks in the "No" block for all the listed Army Values (Loyalty, Duty, Respect, Selfless-Service, Honor, Integrity, and Personal Courage), indicating he did not possess or emulate these values during the rating period.  The bullet comments state:

* "lacked loyalty, respect, selfless-service, honor and personal courage; separated for commission of a serious offense under Chapter 14-12(c)"
* "unable to fulfill his duties due to personal conduct off- duty"

		(2)  Part IVb (Competence) contains a checkmark in the "Needs (Much) Improvement" block and a negative comment that states, "unable to perform his duties as a result of his off-duty employment activities; access was suspended and he was removed from the work center."
		(3)  Part IVd (Leadership) contains a checkmark in the "Needs (Much) Improvement" block and negative comments that state:

* "lacked the moral conscience of an Army leader; engaged in conduct contrary to good order and discipline"
* "failed to recognize or accept the consequences of his actions on fellow Soldiers and the Army"

		(4)  Part IVf (Responsibility & Accountability) contains a checkmark in the "Needs (Much) Improvement" block and negative bullet comments that state:

* "relieved from Sexual Harassment/Assault Response Program Unit Victim Advocate (SHARP/UVA) duties due to the nature of his off-duty employment activities"
* "failed to be truthful during his Separation Board about his continued participation in unacceptable off- duty activities"

   	(5)  Part V (Overall Performance and Potential) shows his rater rated him as "Marginal" and his senior rater rated him as "5-Poor" for overall performance and "5-Poor" for overall potential.  His senior rater also included the following negative bullet comments:

* "does not possess the qualities necessary to advance to the next level"
* "do not send to Senior Leaders Course"
* "displayed poor judgment in multiple circumstances; substandard performance during the rating period"
* "incapable of handling additional responsibilities, limited potential"

4.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 January 2013, and DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 14 January 2014, which show:

	a.  At approximately 2000 hours on 30 November 2012 the applicant had a verbal altercation with his wife.  The DA Form 2173 indicates that she asked him to leave their residence, and he complied with her request.

	b.  Shortly after leaving, he called his wife on his cell phone and told her he was going to commit suicide, that he loved his children, and that he wanted his final wishes fulfilled.  He then hung up and removed the battery from his phone.

	c.  The applicant drove to a remote location and attempted to commit suicide by ingesting approximately 20 Valium pills, which were prescribed for back pain.  He passed out and when he awoke he was surprised but relieved to be alive.  The ingestion led to vomiting and a full physical recovery.

	d.  At approximately 2100 hours, the applicant's wife contacted and informed the brigade Staff Duty NCO (SDNCO) of the incident.  The SDNCO notified the applicant's first sergeant (1SG).  At approximately 2230 hours, First Lieutenant (1LT) JM and Sergeant First Class (SFC) MB arrived at the applicant's home.

	e.  The applicant's wife stated that she and the applicant had made plans to meet with a social group that evening and indicated that she was concerned about the negative response she would receive from those individuals if she and the applicant cancelled their plans to meet with this group.  The applicant's wife also stated that her argument with the applicant started over evidence she discovered that he may have been having extramarital relations or attempting to initiate extramarital relations with another woman.  When the applicant's wife approached him with the allegation of adultery, an argument ensued and [the DD Form 261 indicates] he left the residence stating he needed to find something to do that evening.

	f.  The applicant returned to his home at approximately 0120 hours where two members of his unit, 1LT JM and SFC MB, met him and inquired about his absence.  Upon observing his condition 1LT JM contacted emergency medical services who transported the applicant to the Baltimore Washington Medical Center where he admitted to consuming Valium.

	g.  His DD Form 261 shows on 30 November 2012 he intentionally overdosed on Valium as a result of his self-inflicted ingestion of approximately  20 Valium pills.  He "was acutely distressed and not mentally sound at the time of his actions.  He handles stress and interpersonal rejection poorly and was overwhelmed at the prospect of losing his wife and children."  As a result, this injury was found to be in the line of duty.

5.  His record contains a VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim), dated 21 February 2013, which shows his condition of cervical degenerative disc disease was the condition considered to be the basis of the fitness for duty determination.  However, the applicant also indicated he suffered from the following conditions that were considered to be disabling:

* "middle back"
* "PTSD"
* "right knee"
* "asthma"
* "chronic obstructive pulmonary disease" (COPD)
* "esophageal reflux"
* "flat foot, right"
* "depression"
* "anxiety"

6.  His record contains a DA Form 7652 (PDES Commanders Performance and Functional Statement), dated 14 March 2013, which shows his commander stated/indicated:

	a.  The applicant was currently under investigation for misconduct for an offense chargeable under the Uniform Code of Military Justice (UCMJ), which could result in dismissal or punitive discharge and was pending an involuntary administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)), chapter 14 (Misconduct).  As a result, he has not completed any MOS-related work nor has he been in an appropriate position for grade and MOS since October 2012, because he is the subject of an investigation and has had his security clearance revoked.

	b.  Since Fall 2012, the applicant's work performance has been on hold due to diagnoses for personality and anxiety disorders, depression, and misconduct.  He also has been treated and enrolled in a Behavioral Health Intensive Outpatient Program at Walter Reed Medical Center as well as counseling at Kimbrough Behavioral Health.  The applicant has been afforded every opportunity to benefit from Army Behavioral Health and Medical Services at great effort by the company (rides, escorts every day).

	c.  In August 2012, his company commander granted him emergency leave after his wife threatened to leave him.  In a subsequent Suicide Safety Stand-Down that he walked out of, he explained to his commander that his mother had committed suicide in the last year.

	d.  In late November 2012, he attempted to commit suicide after his wife confronted him about a sexual affair with another woman within their BDSM 
social gatherings.  He was subsequently charged with emotional abuse by the Fort George G. Meade Family Advocacy Board.

	e.  At times, the applicant has been deceptive and manipulative to his health care providers as well as his chain of command.  On three different occasions his commander received phone calls from his behavioral health care providers indicating that he was not being forthright in pursuing treatment and needed to be separated from the Army immediately.  His commander did not recommend retaining the applicant and stated that he had "serious concerns that his injuries stemmed from his own personal choices to participate in off-duty BDSM activities for the past several years, not Army work requirements."

7.  His record contains an IDES narrative Summary (NARSUM), dated 11 June 2013, which shows:

	a.  The applicant was currently the subject of an ongoing involuntary administrative separation under Army Regulation 635-200, chapter 14.

	b.  He had the following conditions which did not meet  medical retention standards and were considered medically unacceptable:

* herniated cervical disc
* asthma
* COPD
* PTSD diagnosed by the VA as depressive disorder nonspecific (NOS)

	c.  He had the following conditions which were considered medically acceptable:

* thoracic degenerative disc disease
* right patellar tendinitis
* bilateral flexible flat feet
* gastroesophageal reflux disease

8.  His record contains a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) dated 11 June 2013 which shows:

	a.  His conditions of herniated cervical disc, PTSD diagnosed by the VA as depressive disorder NOS, asthma, and COPD were found to be medically unacceptable.

	b.  His conditions of thoracic degenerative disc disease, right patellar tendinitis, bilateral flexible flat feet, and gastroesophageal reflux disease were found to be medically acceptable.

	c.  The MEB recommended his  referral to a PEB and he concurred with their findings and recommendations.

9.  His record contains a DA Form 3349 (Physical Profile), dated 14 June 2013, which shows he had a permanent level three profiles for PTSD, chronic neck pain, and asthma, which required referral to an MEB.  This profile also stated that due to his behavioral health condition, he should not be permitted access to weapons or ammunition.

10.  His record contains a memorandum issued by the U.S. Army Installation Management Command (IMCOM) Office of the Staff Judge Advocate (SJA), Fort George G. Meade, Maryland, on 27 August 2013, wherein the SJA informed the President of the PEB that:

	a.  The applicant was being separated under Army Regulation 635-200, paragraph 14-12c (Commission of a Serious Offense).

	b.  In accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-3c, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision that authorizes a characterization of service of under other than honorable conditions. 

	c.  Furthermore, the applicant was pending a separation with the possibility of an under other than honorable conditions characterization for his discharge.  It was the understanding of the applicant's command that he was in the PEB stage and should not continue in the Physical Disability Evaluation System (PDES) process until his separation under other than honorable conditions  had been disposed of by the General Court-Martial Convening Authority (GCMCA).

11.  His record contains a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) dated 24 October 2013, which shows an administrative elimination board convened to determine whether the applicant should be separated from the Army prior to the expiration of his current term of service, under the provisions of Army Regulation 635-200, chapter 14-12c, for Commission of a Serious Offense.  The board made the following findings and recommendations:

	a.  The allegation that the applicant engaged in an adult alternative lifestyle that was of a nature to bring discredit upon the armed services from approximately 2009 until December 2012 was supported by a preponderance of the evidence and warranted separation.

	b.  The allegation that the applicant gave false official statements regarding involvement in an alternative lifestyle when questioned by his chain of command was supported by a preponderance of the evidence and warranted separation.

	c.  The allegation that the applicant engaging in adulterous acts from approximately 2009 until December 2012 was supported by a preponderance of the evidence and warranted separation.

	d.  The applicant should be separated from military service with an under honorable conditions (general) characterization of service.

12.  He provided a VA IDES Proposed Rating, dated 30 October 2013, which shows the VA recommended the PEB consider:

* a 50 percent (%) disability rating for his condition of PTSD
* a 30% disability rating for his condition of COPD 
* a 20% disability rating for his condition of herniated cervical disc
* a total disability rating of 70% for the above conditions

13.  His record contains a proposed DA Form 199 (Informal PEB Proceedings) dated 8 November 2013.  This form was never finalized but does show the PEB found/recommended:

* a 50 percent (%) disability rating for his condition of PTSD
* a 30% disability rating for his condition of COPD 
* a 20% disability rating for his condition of herniated cervical disc
* that he was physically unfit and recommended a total combined rating of 70% and that he be placed on the Temporary Disability Retired List (TDRL) with a reexamination during September 2014

14.  On 1 November 2013, the GCMCA determined that the applicant's medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation and no other circumstances of the applicant's case warranted disability processing.  Therefore, he approved the findings of the administrative separation board and directed the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under honorable conditions (general) characterization of service.

15.  His DD Form 214 shows he was discharged on 25 November 2013 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (Commission of a Serious Offense).  He received an under honorable conditions (general) characterization of service.

16.  His record contains a memorandum, issued by the National Capitol Region PEB on 9 December 2013, which shows the applicant's PEB proceedings had been administratively terminated pursuant to Army Regulation 635-200, chapter 14-12c.  As outlined within a 1 November 2013 memorandum signed by COL BPF, the applicant was to be administratively separated from service under other than honorable conditions.

17.  On 11 June 2014, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined he was properly and equitably discharged and denied his request for an upgrade of his character of service and/or reason for discharge.

18.  He provided 51 letters of support attesting to his good character.

19.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states in:

	a.  Paragraph 1-33, that except in separation actions under chapter 10 (for the good of the service - in lieu of trial by court-martial) and as provided in paragraph 1–33b of this regulation, disposition through medical channels takes precedence over administrative separation processing.

	b.  Paragraph 1-33b, that when the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention, the MTF commander will refer the Soldier to an MEB in accordance with Army Regulation 40–400 (Patient Administration). The administrative separation proceedings will continue; however, the final action by the separation authority will not be taken pending the results of the MEB.

	c.  Paragraph 1-33b(1)(a), that 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 GCMCA and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the PDES when action under the 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 (paragraph 1-33b(1)(a)).  

		(2)  Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation (paragraph 1-33b(1)(b)).

	d.  Paragraph 1-33b(3)(c), that disability processing is inappropriate if the conditions in paragraphs 1-33b(1)(a) and 1-33b(1)(b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent under paragraph 14-12c.

	e.  Paragraph 3-7a, 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.

	f.  Paragraph 14-2, that action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record).  The provisions of paragraph 1–33 of this regulation must have been complied with, if applicable.

	g.  Paragraph 14-3, that 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.

	h.  Paragraph 14-12, that Soldiers are subject to action per this section for the commission of a serious offense.  A separation for the commission of a serious military or civil offense is warranted if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his character of service from under honorable conditions (general) to honorable and correction of his DD Form 214 and discharge orders to show he was medically retired was carefully considered.  
2.  The evidence of record indicates he was already the subject of an ongoing involuntary administrative separation under Army Regulation 635-200, chapter 14, when he completed his VA/DOD Joint Disability Evaluation Board Claim on dated 21 February 2013, which was prior to the/his:

* VA examination and determination/recommendation
* IDES NARSUM
* MEB
* issuance of his permanent profile
* proposed PEB

3.  An investigation and a separation board determined that he had, from approximately 2009 until December 2012, engaged in an adult alternative lifestyle that was of a nature to bring discredit upon the armed services, he gave false official statements regarding involvement in an alternative lifestyle when questioned by the chain of command, and he engaged in adulterous acts.  As a result of this misconduct, the separation board recommended he be separated from military service under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general characterization of service and the GCMCA concurred and directed his separation accordingly.

4.  His chain of command allowed him, as directed by Army regulation, to process through IDES/PDES up and through his PEB.  However, since none of his medical conditions caused his misconduct, it was appropriate, as directed by Army regulations, that he be separated for misconduct.

5.  He provided numerous letters of support attesting to his character, and several other documents attesting to his achievements that were listed in paragraph 3 (The Applicant's Request, Statement, and Evidence).  However, these documents are not sufficient to warrant an upgrade of his character of service or to direct his reason for separation be changed to a medical retirement, because he was properly and equitably discharged in accordance with the applicable regulation in effect at the time of his discharge.  Furthermore, it appears that the separation board did consider his achievements when recommending he receive an under honorable conditions (general) character of service instead of an under other than honorable conditions characterization.  

6.  Based on the foregoing, there is insufficient evidence to grant the requested relief.

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)                                         AR20140011532





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ABCMR Record of Proceedings (cont)                                         AR20140011532



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