IN THE CASE OF:	  

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20140018352 


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, in effect:

* he was separated for medical reasons 
* the bonus recoupment action against him is invalid
* his separation was invalid because of fraud and the forging of his signature
* removal of the Defense Finance and Accounting Service (DFAS) debt from his military records and credit reports
* the Board’s decision was forwarded to the United States Army Reserve (USAR) for appropriate action

2.  The applicant states, in effect:

	a.  He was wounded in Afghanistan and hospitalized in Landstuhl, Germany.

	b.  He was not afforded due process and he suffered reprisal after filing Equal Opportunity (EO) and Inspector General (IG) complaints.  

	c.  His medical information was shared with unauthorized personnel.  

	d.  DFAS established a debt against him in the amount of $6,063 in an attempt to recoup a bonus he received while in the USAR.  

	e.  He is providing medical evacuation orders and line of duty investigation (information) to support his claim of being a wounded combat Soldier.
	f.  Members of the Department of Defense (DOD) forged or copied and pasted his signature on key documents in order to retaliate against him for making EO and IG complaints.  DOD personnel also shared his medical information without his consent to multiple non-essential unit members.

	g.  He contacted multiple Senators and Congressmen to look into his issues. He also contacted the Department of Justice, the DOD IG, and the Federal Bureau of Investigation in an attempt to resolve the injustice.  

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 October 2010
* DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 3 November 2010
* page 2 of a Department of Veterans Affairs (VA) rating decision
* DA Form 1559 (IG Action Request), dated 23 December 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period 29 October 2009 to 22 January 2011
* letters from DFAS, dated 21 August 2012, 29 October 2013, and 14 July 2014
* letter from the U.S. Army Reserve Command (USARC) Headquarters, undated

CONSIDERATION OF EVIDENCE:

1.  Following prior service in the U.S. Marine Corps, the applicant enlisted in the USAR on 29 September 2003 and he enlisted in the Regular Army (RA) on 
21 April 2005.  He reenlisted in the RA on 3 August 2006 and he was discharged from the RA on 2 August 2008.

2.  A USAR reenlistment contract dated on or after 2 August 2008 is not available; however, a Reserve/Guard Bonus Recoupment Worksheet shows a date of affiliation of 2 August 2008.  The worksheet also shows he contracted for 72 months with entitlement to a $20,000 bonus.

3.  His records show he arrived in Kyrgyzstan/Afghanistan on 13 December 2009 as a member of the USAR.

4.  A DA Form 2173 indicates that on or around 4 April 2010, while deployed to Afghanistan, he was seen at the theater clinic for feelings of frustration, anger towards his work situation, unhappiness, restlessness, and anxiety.  He was diagnosed with an adjustment disorder and he was seen a few more times for the same conditions in theater.  He was medically evacuated to Landstuhl, Germany.

5.  His official military personnel file (OMPF) contains a General Officer Memorandum of Reprimand (GOMOR) that he received on 3 June 2010.  He submitted a rebuttal to the GOMOR, dated 19 June 2010, which is also included in his OMPF.

6.  Orders issued by Landstuhl Regional Medical Center, Germany, on 23 August 2010, directed his reassignment to Beaumont Army Medical Center, Fort Bliss, Texas, for the purpose of continued medical care for a period of 10 days.

7.  Orders issued by the U.S. Army Human Resources Command, dated 
9 September 2010, directed his retention on active duty for a period of 60 days for the purpose of completion of a medical evaluation.

8.  Orders Number 0028, issued by Headquarters, Fort Bliss, Texas on             14 December 2010, released him from active duty, not by reason of physical disability, effective 22 January 2011.

9.  Orders Number 12-045-00035, issued by Headquarters, 63rd Regional Support Command (RSC) on 14 February 2012, directed his discharge from the USAR, effective 21 February 2012 with service characterized as under other than honorable conditions.  

10.  Orders Number 12-169-00017, issued by Headquarters, USARC on 17 June 2012, revoked Orders Number 12-045-00035, issued by Headquarters, 63rd RSC on 14 February 2012 (his USAR discharge orders).

11.  Orders Number 13-016-00046, issued by Headquarters, 63rd RSC on        16 January 2013, directed his discharge from the USAR, effective 23 January 2013.  These orders show he was given a character of service of general, under honorable conditions.  His USAR discharge proceedings and/or the specific facts and circumstances surrounding his discharge from the USAR are not available for review.

12.  Letters from DFAS, dated 21 August 2012 and 29 October 2013, addressed to the applicant, show a debt was established against him in the amount of $5,277.78, due to an unearned portion of a Reserve bonus.  These letters also indicate his former unit reported 35 months of satisfactory participation out of a 72-month contract, leaving the remainder of the bonus to be recouped.
13.  A letter from DFAS dated 14 July 2014, responded to the applicant’s Congressional Representative concerning an inquiry about the applicant’s indebtedness.  This letter states the following:

	a.  The applicant's debt is for the recovery of the unearned portion of his USAR affiliation bonus.

	b.  He enlisted in the USAR on 2 August 2008 for an obligated service commitment of 72 months and he was entitled to a bonus in the amount of $20,000, of which he received $15,000.

	c.  According to the USARC Headquarters Bonus Team, he received             9 unauthorized absences as of July 2011.  

	d.  Based on USAR regulations, termination of an enlistment or reenlistment bonus is subject to recoupment should a member become an unsatisfactory participant.  His bonus was terminated on 15 July 2011, which was the date his unit reported that he satisfactorily performed only 35 months of his 72 months obligated contract.  

14.  The applicant provided:

	a.  VA documents that show he was granted service-connected disability compensation for sleep apnea with asthma (previously claimed as bronchitis, cough and emphysema), obsessive compulsive behavior, and post-traumatic stress disorder (PTSD) in remission.

	b.  An IG Action Request, dated 23 December 2014, wherein the applicant claimed that:

		(1)  His signature on a response to a GOMOR was forged.  He did not sign the document nor did he agree to or approve of it.  The forging of his signature was done to represent a confession of wrongdoing.

		(2)  Information from his medical records was disseminated to multiple members of his unit at a board hearing and at the Wounded Warrior unit.  The medical information was shared with personnel that had no need to know.  It was done for the purpose of further harassment.  

		(3)  Though permanently injured in Afghanistan, as shown on written documents such as a line of duty investigation, he was initially given an under other than honorable conditions discharge without a separation board or a Medical Evaluation Board (MEB). 
		(4)  His personal items, including his U.S. Passport, naturalization certificate, and other important documents were never returned to him while at the Warrior Transition Unit or after returning to his home of record.

		(5)  He is still in need of medical care.  The DOD debt was placed on his credit report.  

		(6)  It is very likely more than one document was forged and placed in his military file in order to deny him medical care and due process.

	c.  A DD Form 261, dated 3 November 2010, which shows he was diagnosed with an adjustment disorder while deployed to Afghanistan.  

	d.  A letter from the USARC Headquarters, undated, informing him that based on his discharge date of 23 January 2013, USARC was unable to act on is request for a review of his discharge without an MEB, health information privacy, forged signature, and debt.  He was advised to apply to this Board.

15.  There is no evidence in the applicant's records that indicate he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of discharge.

16.  A review of his OMPF failed to reveal evidence of fraud or signature forging, or evidence indicating he suffered reprisal based on his filings of EO and IG complaints.  

17.  Army Regulation 135-91 (Army National Guard (ARNG) and USAR Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), states a Soldier is an unsatisfactory participant when 9 or more unexcused absences from scheduled inactive duty training occur during a 1-year period.  Unless an absence is authorized, a Soldier failing to attend a scheduled drill will be charged with an unexcused absence.

18.  Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations), chapter 13 provides that a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: 

	a.  The Soldier is an unsatisfactory participant as prescribed by Army Regulation 35–91; or

	b.  Attempts to have the Soldier respond or comply with orders or correspondence have resulted in:
		(1)  The Soldier’s refusal to comply with orders or correspondence.

		(2)  A notice sent by certified mail was refused, unclaimed, or otherwise undeliverable.

		(3)  Verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.

19.  The DOD Financial Management Regulation (DODFRM), Volume 7A, chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), paragraph 020301, provides that when the conditions of a written agreement are not fulfilled and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of pay or benefit.  In cases other than death of a member, the Secretary of the Military Department concerned will advise DFAS of the disposition of any unearned portion of a pay or benefit.  

20.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for an MEB that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 
40-501, chapter 3.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
	
   a.  Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

22.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.


23.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show:

* he was separated for medical reasons 
* the bonus recoupment action against him is invalid
* his separation was invalid because of fraud and the forging of his signature
* the DFAS debt should be removed from his military records, and  credit reports
* the Board’s decision should be forwarded to the USAR for appropriate 

2.  The applicant's reenlistment contract, separation proceedings, and/or the complete facts and circumstances that led to his discharge are not available for review in this case; however, information found in DFAS documents indicates he was granted a reenlistment bonus in the amount of $20,000.00 and he was separated due to unsatisfactory participation prior to fulfilling the complete term of his reenlistment commitment.  

3.  The evidence shows he was diagnosed with an adjustment disorder while serving in Afghanistan; however, his records do not show, and he failed to provide evidence that indicates he was suffering from any medically unfitting condition that would have required him to be processed for separation through medical channels.  

4.  It is noted he was granted service-connected disability compensation by the VA; however, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  His contentions that his signature was forged on certain relevant documents and that he suffered reprisal as a result of filling EO and IG complaints were carefully considered; however, there is no evidence in his available records, and he has provided none that substantiate his contention.  

6.  Based on the unavailability of the applicant's separation proceedings and his failure to provide documentary evidence showing an error or injustice occurred in his discharge process, administrative regularity must be presumed.

7.  He did not provide evidence and his records do not contain any evidence to support his contention that he should have been separated for medical reasons.  Therefore, he has failed to show that his separation processing for unsatisfactory participation was in error or unjust.  As a result, there is no basis for granting him a medical discharge, to render the recoupment of the unearned portion of his bonus as invalid, or to invalidate his discharge from the USAR.

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)                                         AR20140018352



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ABCMR Record of Proceedings (cont)                                         AR20140018352



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