IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150001208 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant’s record to show he was discharged for physical disability based on his diagnosed myocardial infarction and pericarditis.

2.  Counsel states, in effect, that the applicant was unjustly discharged for misconduct even though his medical conditions made him medically unfit to perform his duties.  Further, the applicant’s chain of command failed to follow applicable regulatory guidelines and statute by not referring him to a Medical Evaluation Board (MEB).

3.  Counsel provides an appendix listing his enclosures which include:

* a 10-page legal brief
* ten DA Forms 4856 (Development Counseling Form)
* two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* the applicant’s partial medical records for the period 4 September 2010 to 7 June 2011
* applicant’s discharge packet
* clinical definitions and medical literature related to myopericarditis and chronic pericarditis
* applicable Army and DODI references
* DD Form 214 (Certificate of Release of Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 November 2009.  He served at Fort Hood, TX as a 19K (Armor Crewman).

2.  A review of the applicant's Official Military Personnel File (OMPF) found the following disciplinary history:

* counseled and accepted nonjudicial punishment (NJP)(Article 15) for failing to go at the  prescribed time to his appointed place of duty and disorderly conduct on 4 August 2010
* counseled for missing movement to the range on 4 August 2010
* counseled for debt, lying to a noncommissioned officer (NCO), supplying alcohol to a minor, and trying to acquire the services of a prostitute on
4 August 2010
* counseled for unresolved and progressive personal and professional problems
* given corrective training for failing to go at the time prescribed to his appointed place of duty on19 October 2010, and notified of the possibility of separation action should his misconduct continue
* given corrective training for failing to go at the time prescribed to his appointed place of duty on 23 September 2010 which required the applicant to report to the staff duty officer and sleep in the conference room and notification of possible separation action for continued substandard performance
* counseled and accepted NJP for three specifications of failing to go at the time prescribed to his  appointed place of duty on 3 December 2010 and notified of possible separation action
* counseled for communicating a verbal threat on 7 January 2011 to kill everyone in the company if returned back to his unit

3.  The record shows that in response to his counseling:

   a.  for failing to go to his appointed place of duty on 19 October 2010, the applicant stated:  ?I have myocardiots so I have pain on a daily basis and on that night I only got 45 minutes of sleep because of the pain therefore I was not able to be awaken by my alarm clock.?
   
   b.  for verbally communicating a threat he stated, ?My intentions were not to harm anybody.  My intentions were to get help.  I don’t own a gun.  When I was making this threat I wasn’t angry.  I said it in a regular but sad voice.  The only reason why I have this charge is because I didn’t want to go back to the company because I was scared of the abuse.  This is why they called the military police.?

4.  The applicant indicated on both of his DA Forms 2627 that he had been afforded the opportunity to consult with counsel, did not demand a trial by court-marital, did not present matters in defense, mitigation and/or extenuation and did not wish to appeal his punishment.

5.  On 15 June 2011, the applicant's commander informed him that he was initiating action to separate him from the Army for a pattern of misconduct which included communicating a threat, failing to go at the time prescribed to his appointed place of duty on two occasions, and being drunk and disorderly at a hotel and confrontational with a hotel employee.  He recommended the applicant's service be characterized as general, under honorable conditions.

6.  The applicant waived his opportunity to consult with an attorney concerning the election of his rights of the proposed administrative discharge.  He further acknowledged that:

* that he would normally have at least 3 duty days to consult with counsel; however, he wanted to proceed now without consultation
* the separation action would be processed at that time
* that he made the decision to waive counsel of his own free will and no one had coerced him into making the decision

7.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He waived his rights and he elected not to submit a statement in his own behalf.

8.  On 8 July 2011, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, pattern of misconduct, and directed the issuance of a general discharge.  On 20 July 2011, the applicant was discharged accordingly.  He had completed a total of 1 year,
8 months, and 18 days of net active duty this period.

9.  Counsel provides the applicant’s medical records for the period 4 September 2010 to 7 June 2011 which show:

	a.  On 4 September 2010, the applicant was admitted to Scott & White Memorial Hospital complaining of chest pains for four days and that the pain had begun after receiving a small pox vaccine at the Carl R. Darnall Army Military Center (DAMC) approximately 5-6 days earlier.  The recent history of the small pox vaccine and sharp pains made the diagnosis of myopericarditis a possibility so weighing the risks and benefits, it was decided to proceed with a coronary angiogram.  He remained in the hospital for 6 days.

	b.  He sought follow up care at DAMC on 13 September 2010 and after evaluation he was given a temporary 30-day physical profile for chest pain (myopericarditis).

	c.  The applicant completed four follow up medical appointments on 
27 September 2010, and 1, 3 and 7 October 2010.  He was treated for myopericarditis, secondary to smallpox vaccination and anomalous LM coronary artery, arising off of the right coronary cusp.

	d.  On 8 December 2010, he complained of sleep disturbance for two weeks and depression for three months and requested a psychiatric evaluation. 

	e.  A partial Behavioral Health Report (pages 62, 63, and 70 of 145), dated 
3 January 2011, shows he was admitted to the Metroplex, Killeen, TX, and diagnosed with panic disorder with mild agoraphobia, major depression, moderate to severe, recurrent.  He reported stress from military service and his medical conditions.  He was admitted for treatment of anxiety and depression with individual and group therapy, teaching coping skills, medication titration and treatment.

   f.  On 15 February 2011, he was seen for a follow up after his discharge.  The medical notes show the applicant was making negative statements about his unit and the Army, expressing thoughts of hurting self or others but with ambivalence, and displayed despair and rage that would likely recur even after being treated.  It was noted that the applicant had access to a gun but would not tell anyone where it was located; therefore, his unit was notified of the threats and he was referred to Metroplex Pavilion for in-patient psychiatric care. 

	g.  On 18 February 2011, the applicant was evaluated for adjustment disorder.  He reported that his chain of command was stressing him out and treating him badly. 

	h.  He was evaluated and examined on 22 February 2011 in the Cardiology Clinic for his myopericarditis.  His primary care physician stated “The patient continues to have chest pain--> not cardiac.  Because of this continued chest pain, the patient should be considered for a Medical Evaluation Board.”  The notes further show the applicant was referred to the MEB Clinic, as soon as possible, for evaluation of his acute myopericarditis.

	i.  He continued treatment from 18 March to 7 June 2001 for his adjustment disorder which include medication and group therapy.

10.  Counsel makes the following arguments:

	a.  The applicant’s medical condition is listed in governing regulations as a condition that requires referral into the physical disability evaluation system (PDES).

   b.  The applicant’s medical condition prevented him from performing his duties and the evidence of this can be seen in his counseling statements which show that on every occasion he was found sleeping and in one statement the applicant details his pain and fatigue from his medical condition was directly attributable to his inability to wake.  The National Institutes of Health and Cedars-Sinai cite the symptoms of myopericarditis as sharp, stabbing pain, weakness, trouble breathing, and fatigue/tiredness.  The applicant’s missed duty times stemmed from his restless and painful nights, a direct consequence of his involuntary condition.
   
   c.  On 22 February 2011, 6 months after the applicant’s initial diagnoses, the applicant was referred to an MEB; however, his chain of command initiated the administrative discharge and the MEB was never completed.  His leadership was aware that the applicant was medically unfit to deploy and failed to attribute his lack of performance to his medical condition or refer him for further evaluation by a MEB. 
   
   d.  The drunk and disorderly incident that occurred on 4 August 2010 appears to be the sole reason for the applicant’s discharge; however, the applicant had  been counseled for this incident and his counseling included a corrective action plan, restrictions, and revocation of privileges.  This action prevented him from further medical evaluation possibly leading to a medical discharge.  He contends that three of the four reasons for his discharge are medically related; therefore, it is unjust to let this incident stand as the sole reason for discharge.
   
   e.  The applicant received two Article 15s for incidents for which he had been previously counseled.  Counsel contends that the commander failed to act in accordance with the Manual for Courts-Martial when he failed to do a preliminary inquiry into any mitigating factors, such as the applicant’s medical history, or to consider the effect the NJP would have on the applicant’s record. 
   
	f.  The applicant should have been medically discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) because his disability was the cause, or substantial contributing cause, of the misconduct that led to his discharge.  His myopericarditis and myocardial infarctions caused his depression.  Depression is three times more common in patients after a heart attack that in the general population.  The 
7 January incident was an extension of his depression.  His solemn comment concerning death is reflective of the symptoms of depression and was spoken to a person he felt would help him.  He received treatment and his depression improved.

	g.  The command failed to assist, rehabilitate, and support the applicant.  None of his counseling statements include medical or mental health assessment as part of the plan to correct his behavior.  Rather the constant punishment in the form of multiple counseling statements, lowered rank, and reduced pay contributed to his depression.

	h.  The purpose of counseling is develop Soldiers; however, his chain of command misused counseling statements by issuing more than one counseling statement for the same incident.  At one point, the applicant received five counseling statement on the same day for an incident that occurred on 4 August. Further, the counseling statements refer to incidents (providing alcohol to a minor and soliciting a prostitute) that are not verified by either witness statements or the evidence.

11.  In connection with the processing of this case, an advisory opinion was received from the United States Army Physical Disability Agency (USAPDA).  This official stated that before a physical evaluation board (PEB), or the USAPDA, can render any finding or an opinion in this case an MEB must first be provided by the Office of the Surgeon General (OTSG) or Medical Command (MEDCOM). 

12.  The applicant’s counsel responded to the USAPDA advisory opinion on 
14 May 2015.  He reiterated that the command failed to refer the applicant through the proper medical channels.   The Commander’s report recommended that the applicant be considered for administrative separation for an alleged “pattern of misconduct”; however, the applicant ultimately received a general under honorable conditions characterization of service for misconduct (serious offense).  Further, discharge proceedings were initiated after an MEB was recommended by a doctor and after the applicant threatened suicide.

13.  Army Regulation 635-40 establishes the Army 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 MEBs, which are 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.   Paragraph 2-18 of this Regulation states that a current or history of all valvular heart diseases, congenital or acquired, including those improved by surgery, are disqualifying, to include pericarditis, acute nonrheumatic.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged for misconduct on 20 July 2011; however, the pattern of misconduct appears to have been exaggerated by using multiple counseling statements for the same incident.  The available evidence shows that most of the misconduct occurred after he was diagnosed with a heart condition and it would be difficult to definitively determine if his misconduct was due in whole or part to his medical condition.  Further, the USAPDA was unable to render an official opinion in this case without an MEB finding from the OTSG or MEDCOM.

2.  Army Regulation 40-501 states that a history of heart disease, to include the applicant’s medical condition of pericarditis, is a disqualifying medical condition and there is evidence he received treatment for a heart condition while on active duty.  Further, a military physician referred the applicant to an MEB on 22 February 2011.

3. In view of the foregoing and notwithstanding his chain of command's decision to discharge him for misconduct, he should be afforded the opportunity to have his records reviewed through the PDES process.  If, after he completes his PDES processing, the determination is made that he should have been separated by way of physical disability with severance pay or should have been retired by reason of physical disability, he should be provided any back pay due as a result based on the percentage of disability awarded.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders;
	
   b.  in the event that the applicant requires an MEB and PEB, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing an MEB and/or PEB; and

	c.  should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances, less any entitlements already received.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 








denial of so much of the application that pertains to a medical discharge/retirement at this time.



      ___________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)                                         AR20150001208





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ABCMR Record of Proceedings (cont)                                         AR20150001208



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