IN THE CASE OF:
BOARD DATE: 3 February 2015
DOCKET NUMBER: AR20140012067
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 his earlier request for:
* an upgrade of his general discharge
* restoration of his rank/grade to sergeant (SGT)/E-5
* award of the Army Good Conduct Medal
2. As a new issue, he requests a personal appearance before the Board. Also as a new issue, the applicant requests compensation in the amount of $20,000,000 (twenty million) for the aggravated assault that he underwent at Schweinfurt, Germany, and resulted in a moderate to severe brain injury.
3. The applicant states:
* he was the victim of an aggravated assault that resulted in a moderate to severe brain injury
* despite being beaten severely, his chain of command did not provide him with the appropriate treatment
* after his discharge, he has been seen by various specialists and doctors who diagnosed him with a traumatic brain injury (TBI)
* he believes he is suffering from permanent damage to his brain; had the Army treated him for this injury, he would not be suffering from this permanent damage
* he has provided the report from the U.S. Army Criminal Investigation Command (CID) confirming his assault
* he has also provided medical documents related to this assault and the resulting brain injury
* he believes his medical surgery should have taken precedence over the administrative discharge
* he believes due to being on active duty, he is barred from filing a law suit for being assaulted in Schweinfurt, Germany
* he should not be blamed for being assaulted and suffering a medical condition
* the Army disrespected him and did not take care of him after they beat him up
4. The applicant provides:
* DA Form 3975 (Military Police Report), dated 30 December 2010
* Letter, dated 9 December 2011, from Headquarters, Fort Campbell, KY, to his Member of Congress
* Post-service Radiological Examination Report, dated 6 May 2014
* In-service Chronological Records of Medical Care
* Post-service medical letter and progress notes, dated 2 January 2013, from Dr. WJT
* Post-service medical letter, dated 20 March 2013, from Dr. JLR
* Letter, dated 27 September 2013, from the U.S. Army Claims Service, Office of the Judge Advocate General, Fort Meade, MD
* Post-service Department of Veterans Affairs (VA) provisional rating decision, dated 18 July 2013
* Enlisted Record Brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Internet printouts regarding filing claims and the Military Claims Act
* A letter, dated 12 June 2013, from the Seventh U.S. Army Joint Multinational Training Command, Office of the Staff Judge Advocate, Schweinfurt, Germany
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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130015272, dated 21 May 2014.
2. The applicant provides a new argument. He also raises new issues related to his discharge. This is considered new evidence and warrants consideration by the Board.
3. The applicant's records show he enlisted in the Regular Army for a period of 4 years on 8 August 2008. He completed training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).
4. Following completion of MOS training, he served in Korea around January 2009 to around January 2010. He was promoted to private first class/E-3 on 1 May 2009. He was awarded or authorized 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).
5. He appears to have been reassigned to Germany, on or about 7 January 2010. He was assigned to 1st Battalion, 77th Field Artillery Regiment, Schweinfurt. He was promoted to specialist (SPC)/E-4 on 1 May 2010.
6. In August 2010, he was involved in an incident while attempting to break up a fight. The CID report shows an investigation was initiated upon notification of an aggravated assault. The applicant was reportedly assaulted by three unknown males and suffered head trauma requiring hospitalization. The investigation revealed a sergeant committed the offense of aggravated assault when he struck the applicant with a closed fist causing him to strike his head against the pavement.
7. The applicant was transferred to Fort Gordon, GA, where he received treatment and counseling with the Warrior Transition Unit. Upon completion of his hospitalization, he was cleared for duty and reassigned to Fort Campbell, KY, in August 2011. He was assigned to Headquarters and Headquarters Company, 3rd Special Troop Battalion, 3rd Brigade Combat Team.
8. On 24 October 2011, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:
* Violating a general regulation, on or about 10 September 2011, by wrongfully possessing drug abuse paraphernalia
* Violating a general regulation, on or about 10 September 2011, by wrongfully possessing a substance for the purpose of inducing intoxication, excitement, and stupefaction of the central nervous system
9. He was found guilty of both specifications. His punishment consisted of a reduction to the lowest enlisted grade, a forfeiture of $733.00 pay per month for 2 months, and 45 days of extra duty. He appealed his punishment to the next higher commander; however, his appeal was denied on 22 November 2011 and he was so notified on 30 November 2011.
10. On 7 December 2011, CID agents were notified by the Fort Campbell Military Police that suspected Synthetic Cannabinoids were found in the applicant's barracks room. An investigation established probable cause to believe the applicant committed the offense of failure to obey a general regulation when he was found in possession of the controlled substance/drug.
11. On 8 December 2011, he 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 a doctor. He had experienced severe then moderate TBI. He listed his medications and indicated that he had moderate TBI cognitive disorders and subdural hemorrhage.
12. He underwent a medical examination that began on 14 October 2011 and concluded on 9 December 2011. The DD Form 2808 (Report of Medical Examination) noted a history of mild/moderate 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. He was assigned a PULHES of "1-1-1-1-1-1" and was found fully qualified for separation.
13. 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 doctors 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 Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter [sic] 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 Army Regulation 40-501 (Standards of Medical Fitness), and he is therefore cleared for this chapter.
14. On 5 January 2012, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. Specifically, the commander cited the incidents on
10 September and 7 December 2011 wherein the applicant wrongfully possessed drug paraphernalia and a synthetic substance for the purpose of inducing intoxication, excitement, and stupefaction of the central nervous system. The commander recommended a general, under honorable conditions, discharge.
15. On 11 January 2012, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a separation board and/or a personal appearance before a separation board (he did not qualify for an administrative separation board because he had less than 6 years of service). He elected not to submit a statement on his own behalf and he acknowledged he understood that:
a. He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.
b. He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.
16. On 11 January 2012, subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct. The chain of command recommended approval of the discharge action with the issuance of a general discharge.
17. On 12 January 2012, the separation authority approved the applicants discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense with an under honorable conditions (general) characterization of service.
18. On 20 January 2012, the applicant was accordingly discharged. His DD Form 214 shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with an under honorable conditions (general) characterization of service. He completed
3 years, 5 months, and 13 days of net active service this period. The DD Form 214 also shows in:
* item 26 (Separation Code) the entry JKQ
* item 28 (Narrative Reason for Separation) the entry Misconduct (Serious Offense)
19. On 18 October 2012, following his petition to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable based on his claim of severe TBI, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged. As a result, the ADRB unanimously denied his petition for an upgrade of his discharge.
20. Likewise, on 21 May 2014, following his petition to the ABCMR for an upgrade of his discharge to fully honorable based on his claim of severe TBI, after careful review of his application, military records, and all other available evidence, the ABCMR determined there was insufficient evidence to support his contention and that he was properly and equitably discharged. As a result, the ABCMR unanimously denied his petition for an upgrade of his discharge.
21. He provides the following documents submitted in support of his application:
a. A 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.
b. A letter, dated 7 March 2012, from a member of Congress who wrote that 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.
c. A letter, dated 12 June 2013, from the Seventh U.S. Army Joint Multinational Training Command, Office of the Staff Judge Advocate, Schweinfurt, Germany, explaining to him the law related to potential claims for compensation against the U.S. Forces under the provisions of NATO Status Forces Agreement (SOFA).
d. A letter, dated 9 December 2011, from the Chief of Staff, Headquarters, Fort Campbell, KY, to the applicant's Member of Congress explaining that the applicant's medical condition did not require a medical evaluation board. He was treated and found fit for duty by his medical provider at Fort Gordon, GA. He received extensive evaluations and treatment while at the Fort Gordon Warrior Transition Battalion. His medical providers determined he recovered sufficiently to continue to serve in the Army and he was cleared for duty and transferred to Fort Campbell.
e. Post-discharge medical documents related to TBI.
f. Internet articles related to claims.
g. VA provisional rating decision, dated 18 July 2013, awarding him service-connected disability compensation for tension headaches, residuals of TBI, and a scar to his left scalp area.
22. Army Regulation 635-200 (Administrative Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 133, disposition through medical channels states that except in separation actions under chapter 10 and as provided in paragraph 133b, 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 40501, chapter 3), he/she will refer the Soldier to a Medical Evaluation Board (MEB) in accordance with Army Regulation 40400 (Patient Administration); 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 63540 (Physical Evaluation for Retention, Separation, and Retirement), the MTF commander will furnish copies of the approved MEB proceedings to the Soldiers 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:
* The Soldiers medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination
* Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation
* 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
* The GCMCAs 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
* Copies of the GCMCAs decision will be furnished to the unit commander and included in the administrative separation proceedings
* The unit commander will suspend processing of the administrative separation action pending the PEB
* If the Soldier is found physically fit, the administrative separation action will be resumed
* If the Soldier is found physically unfit, the administrative separation action will be abated
* 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. 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, 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 is normally appropriate for a Soldier discharged under this chapter. 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 members 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.
23. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body.
a. Chapter 2 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.
b. Chapter 3 states, the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records. The Army may not pay any claim previously compensated by Congress through enactment of a private law. The ABCMR furnishes Defense Finance and Accounting Service (DFAS) copies of decisions potentially affecting monetary entitlement or benefits and DFAS treats such decisions as claims for payment by or on behalf of the applicant. DFAS will settle claims on the basis of the corrected military record.
24. 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. With respect to the personal hearing, the applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
2. With respect to the issue of compensation in the amount of $20,000,000 for the aggravated assault that he underwent Schweinfurt, Germany, and resulted in a moderate to severe brain injury, the ABCMR corrects military records. It is not a pay agency. If as a result of a record correction a service member is entitled to pay, the ABCMR will furnish DFAS a copy of the decision potentially affecting monetary entitlement or benefits. DFAS will treat such decisions as claims for payment by or on behalf of the applicant. DFAS will settle claims on the basis of the corrected military record.
3. With respect to the discharge upgrade:
a. The evidence of record shows the applicant committed serious offenses; specifically, the incidents on 10 September and 7 December 2011 wherein the applicant wrongfully possessed drug paraphernalia and a synthetic substance for the purpose of inducing intoxication, excitement, and stupefaction of the central nervous system. As such, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
b. Prior to discharge, it is presumed he underwent a mental status evaluation by competent military medical authorities as well as a medical examination. He was cleared for administrative action deemed appropriate by his chain of command. He was fit for duty and qualified for separation. No medical or mental issues were raised or found during his examinations. Furthermore, when his commander advised him of the initiation of separation action, he neither raised any behavioral health/medical issues nor submitted a statement on his own behalf.
c. There is no evidence in his records that shows he was physically unfit at the time of his discharge. A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. The available evidence shows he was fully able to perform the duties of his grade and/or MOS and he was fully qualified for discharge.
d. Further, the reason for his discharge (misconduct commission of a serious offense) was not related to any medical conditions he had been diagnosed with and there were no other compelling reasons for the separation authority to initiate disability processing. In the absence of evidence to the contrary, it is presumed that the separation authority was aware of the requirements of Army Regulation 635-200 and acted accordingly. The nature of the applicant's misconduct (drug abuse) had no relation to any medical condition/medications he now claims, and he presented no compelling evidence that other circumstances warranted disability processing over administrative separation.
e. His discharge appears to be appropriate based on the quality of his service. His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. His actions at the time clearly brought discredit upon himself and the Army. Based on his record of misconduct (one instance of NJP, and one instance of a court-martial conviction) he is not entitled to an honorable discharge.
4. With respect to his rank:
a. The evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ on 22 November 2011 that resulted in his reduction to PVT/E-1. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commanders function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through proper channels. He appealed his Article 15 and his appeal was denied.
b. His NJP proceedings were conducted in accordance with law. There is no evidence of record and he provides no evidence to show the NJP is untrue or unjust. Likewise, there is no evidence in his records and he provides none to show he was promoted between the date he was reduced (22 November 2011) and the date he was discharged (12 January 2012). His records correctly show his rank, grade, and effective date of pay grade. He provides no evidence of an error or an injustice and as such, he is not entitled to the requested relief.
5. With respect to the Army Good Conduct Medal, the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity. The applicant was investigated by CID, received NJP, and was ultimately discharged for misconduct - commission of a serious offense. It is clear that he did not meet the criteria for this award. As such, he was not entitled to it.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. With respect to the issues being reconsidered, 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 AR20130015272, dated 21 May 2014.
2. With respect to the new issues, 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.
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