RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 January 2006
      DOCKET NUMBER:  AR20050006755


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Terry L. Placek               |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show that he
was placed on the Temporary Disability Retired List (TDRL); that his rank
of Sergeant, E-5 be restored; that medical benefits for himself and his
family be reinstated; that these changes be made retroactive to his
expiration term of service (ETS) date; that he be issued a new DD Form 214
(Certificate of Release or Discharge from Active Duty) with the changes;
and that he receive original copies of all documents changed by the Board.

2.  The applicant states he had a total of nine surgeries performed, all
due to an injury he sustained in January 1994.  He was sent to Walter Reed
Army Medical Center (WRAMC) in 1999 suffering from extreme, constant,
chronic pain.  He also had sleep apnea, urinary incontinence, and acid
reflux, all secondary to surgery.  All his doctors were at the Navy
National Medical Center in Bethesda, MD.  He was a patient at the Pain
Management Clinic and he was prescribed narcotics.  All of his surgeries
and treatments took place at Bethesda as well.  That seemed to bother
people at WRAMC.

3.  The applicant states months went by and nothing happened.  The Medical
Hold Company and his Physical Evaluation Board (PEB) Liaison Officer
(PEBLO) could never give him information abut his medical board.  Almost a
year later, his PEBLO called him to review his PEB.  The PEB was incomplete
and missing information (sleep apnea, knee surgery, urinary incontinence,
etc).  Even after he rejected their offer, they wanted him to accept the
board.  He got completely frustrated and got in touch with his
Representative in Congress.  Immediately after his Congressman got
involved, there was a lot of tension in the company.  A mandatory meeting
for all the medical hold personnel was called and they were told, in
effect, "stop writing to your Congressmen."

4.  The applicant states that, from then on, he was treated with complete
indifference by his first sergeant and company commander.  Meanwhile, his
condition and his chronic pain were getting worse and worse.  His
medications were increased.  The medications started affecting his life in
general.  After trying everything to get his board completed, he lost all
hope of fair treatment by his command.  One night a friend offered him
marijuana to calm his chronic pain and to enable him to sleep.  At that
moment, he would have tried anything if he thought it would have taken the
pain away.  He did smoke the marijuana, and for the first time in over a
year he slept through the night.  He understands he did something wrong,
but God knows that he was going through extreme pain and suffering.

5.  The applicant states his company commander went out of his way to
damage the applicant's entire medical process.  He illegally wrote a letter
to the PEB, ignoring all regulations and the Privacy Act, with the sole
intention of damaging the applicant's approved medical board.  His
commander did that on a Friday afternoon, so the applicant could do nothing
about it.  His commander instructed the Chief of the Retention Point to cut
new orders for the applicant.  Instead of a medical retirement or placement
on the TDRL, he was to separate due to ETS.  The Chief advised the
commander that action was completely against regulations, but the commander
said he would deal with it if anything happened.

6.  The applicant provides a DA Form 2173 (Statement of Medical Examination
and Duty Status); two DA Forms 199 (Physical Evaluation Board (PEB)
Proceedings) with related documents; a 12 October 2000 letter from his
Representative in Congress; a 30 October 2000 letter from Family Orthopedic
Associates; two requests for retention in service; a Physical Disability
Information Report; TDRL orders dated 7 February 2002, revocation orders
dated 8 February 2002, and discharge orders dated 8 February 2002 (as
amended by orders dated 11 February 2002); and MILPER Message Number 00-77,
Subject: Change to Disability Orders Processing.

7.  The applicant also provides a Punishment Worksheet; a DA Form 2627
(Record  of Proceedings under Article 15, UCMJ) dated 21 November 2001 and
a DA Form 2627-2 (Record of Supplementary Action Under Article 15,UCMJ); a
DA Form  268 (Report to Suspend Favorable Personnel Actions (FLAG)) dated
12 October 2001; a memorandum dated 30 November 2001; a memorandum dated 29
October 2001, subject:  Service Member Notification of Commanding Officer
Referral for Mental Health Evaluation (Non-Emergency); a memorandum dated
29 October 2001, subject:  Command Referral for Mental Health Evaluation of
(the applicant); his Enlisted Record Brief; his DD Form 214 (Certificate of
Release or Discharge from Active Duty); his Honorable Discharge
Certificate; and an extract from Army Regulation 635-200.

8.  The applicant also provides a memorandum dated 11 December 2001 from
his trial defense counsel; a memorandum dated 11 December 2001 from him to
his commander; a memorandum dated 7 February 2002; a DA Form 3822-R (Report
of Mental Status Evaluation); two memorandums dated 29 November 2001; an
extract from Army Regulation 635-40; and a memorandum dated          7
February 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 February 2002.  The application submitted in this case is
dated 26 April 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 20 July 1992.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 68L (Avionic Communications Equipment
Repairer).  He last reenlisted on 12 August 1997 for 4 years, making his
ETS 11 August 2001.

4.  The DA Form 2173 provided by the applicant indicates he injured his
back in January 1994 when he slipped out of the back of a van due to the
platform being frozen and landed on his back.  The injury was determined to
be in line of duty.

5.  In October 1999, the applicant, who had undergone an L5-S1 lumbar
fusion in August 1996 and revision surgery in May 1998, was medically
evacuated from Korea to Bethesda Naval Medical Center for further
hospitalization and evaluation.  The Medevac Summary indicated the surgery
was performed at Bethesda Naval Medical Center.  The applicant had been
doing well postoperatively until about two months previously, when he had
dramatic worsening of his low back symptoms.  Orders dated 13 October 1999
assigned the applicant to the medical holding company, WRAMC.

6.  On 25 August 2000, an informal PEB (the MEB is not available) found the
applicant unfit due to lumbar stenosis, congenital and degenerative,
without a history of trauma/injury, with a history of two surgical
procedures to relieve pain without positive results (diagnoses 1 and 2;
diagnoses 3 and 4, not known, were found to be not unfitting).  The PEB
recommended the applicant's separation with severance pay and a 20 percent
disability rating.

7.  On 11 September 2000, the applicant disagreed with the findings of the
PEB. He noted that, at the time the MEB was sent to the PEB, it was already
over six months old.  He stated he had told his previous PEBLO about
information that was missing, but the PEBLO decided to send it without this
information any way.

8.  On 25 September 2000, the U. S. Army Physical Evaluation Board, WRAMC
notified the applicant of a formal PEB to be held 18 October 2000.

9.  On 12 October 2000, the applicant's Representative in Congress
responded to a request from the applicant.

10.  On 13 October 2000, the U. S. Army Physical Evaluation Board, WRAMC
administratively closed the applicant's case as, according to the
applicant's primary care physician, he had not reached maximum benefit of
military medical care.

11.  The applicant obtained a 30 October 2000 statement from the doctor (no
longer in the military) who performed his lumbar fusion.  The doctor stated
the applicant's congenital spinal stenosis may have been a pre-existing
condition, but he was asymptomatic prior to his fall in January 1994.  The
doctor stated it was extremely reasonable to believe the fall triggered the
subsequent pain and symptomalogy.  The doctor also stated that, during the
second surgery, urology had placed stents to help the surgeons locate the
ureters during the approach anteriorly.  Since then, the applicant had had
difficulties with urological function and erectile dysfunction.

12.  On 17 July 2001, action was taken to request the applicant be retained
on active duty beyond his ETS to complete his hospitalization.  The
applicant desired retention, and he was approved for retention until 12
November 2001 or until completion of medical processing, whichever was
soonest.

13.  On 11 October 2001, the applicant's commander requested nonjudicial
punishment action be taken against the applicant for a positive urinalysis
(wrongful use of marijuana on or between 23 August and 24 September 2001).

14.  On 12 October 2001, the applicant's commander signed a DA Form 268
initiating a flag for adverse action.

15.  On 29 October 2001, the applicant's commander referred him for a
mental health evaluation.  In the memorandum of this date to the applicant,
the commander stated:

      "(2)  The following is a description of your behaviors and/or verbal
expressions that I considered in determining the need for a mental health
evaluation:  28 March 01 Article 86 Failure to repair, 07 May 01 Article 92
Failure to obey an order, 07 May 01 Article 134 wrongfully and without
authority wearing the wrong rank.

      (3)  Before making this referral, I consulted with the following
mental health care provider about your recent actions:…on 17 May 01.  CPT
R___ concurs that this evaluation is warranted and is appropriate."

16.  In a 29 October 2001 memorandum to Outpatient Psychiatry, the
applicant's commander requested a formal mental health evaluation of the
applicant.  In paragraph (3) of the memorandum, the commander referred to
"PVT M___ W___" (not the applicant).

17.  On 2 November 2001, the applicant requested retention on active duty
beyond his ETS for continued inpatient hospitalization and/or physical
disability processing.  On this date, he was approved for retention until
12 February 2002 or until completion of medical processing, whichever was
soonest.

18.  On 7 November 2001, the applicant underwent a mental status
evaluation.  The examining psychiatrist noted the applicant was referred as
he had a positive urinalysis, was pending a chapter 14 and a medical board,
and for expressing suicidal thoughts.  The examining psychiatrist stated
the applicant reported he was pending a medical board for a back injury
that, because of untimely reporting by physicians, had not been completed
in two years.  The applicant also stated he was in a financial crisis and
was facing legal problems for a child he had not been aware existed until
recently.  The applicant stated he had never done drugs but a friend,
seeing him suffer, offered marijuana, which the applicant smoked.  The
applicant was cleared for any action deemed appropriate by his command.

19.  On 21 November 2001, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use
of marijuana.  His punishment was a reduction to pay grade E-4, a
forfeiture of $826.00 pay per month for two months, and extra duty for 45
days.

20.  On 28 November 2001, an MEB referred the applicant to a PEB for
diagnoses of (1) low back pain status post anterior and posterior spinal
fusion of the L5-S1 spinal segments; (2) detrusor sphincter dyssynergia
secondary to back surgery; (3) erectile dysfunction secondary to back
[surgery]; and (4) chronic pain secondary to bunion surgery of the left
fifth metatarsal phalangeal joint.

21.  By memorandum dated 29 November 2001, the applicant's commander
informed the President, PEB, WRAMC that the applicant was not pending UCMJ
or administrative actions.

22.  By memorandum dated 29 November 2001, the applicant's commander
informed the PEBLO the applicant was not flagged.

23.  By memorandum dated 30 November 2001, the applicant's trial defense
counsel informed the applicant's commander he (counsel) had received the
chapter 14 packet but was returning it without action due to some errors in
the packet.

24.  On 7 December 2001, a PEB found the applicant to be unfit due to
detrusor sphincter dyssynergia with incontinence secondary to back surgery
(40 percent); low back pain post anterior and posterior fusion L5/S1, pain
on motion, rated for pain on motion (10 percent); and chronic pain
secondary to bunion surgery of the left fifth metatarsal phalangeal joint
(10 percent).  The PEB recommended the applicant be placed on the TDRL.  On
11 December 2001, the applicant concurred with the findings of the PEB.

25.  On 11 December 2001, the applicant's trial defense counsel stated he
received the chapter 14 packet.  Counsel urged the command to allow the
MEB's (sic) finding to be approved.  Counsel stated the applicant made an
awful mistake in his life at a time when he was severely depressed.  He had
faced ongoing medical procedures, financial stress, and an uncertain future
since his assignment to the medical holding company.

26.  On 11 December 2001, the applicant was advised by counsel of the basis
for the separation action.  He waived consideration of his case by an
administrative separation board contingent upon his being retained in
service.  He understood that, if he was retained, his MEB (sic) findings
would go forward for approval.  If his request was denied, he requested a
board.  He indicated he submitted statements on his behalf; however, no
statement is available.

27.  On 13 December 2001, the commander who imposed the Article 15
punishment suspended the forfeiture of pay.

28.  On 7 February 2002, orders were published placing the applicant on the
TDRL effective 13 February 2002.

29.  In a 7 February 2002 memorandum addressed to the U. S. Army Physical
Evaluation Board, the applicant's commander requested the applicant's
medical board be terminated until the completion of his chapter 14
proceedings.

30.  On 8 February 2002, orders were published revoking the applicant's
TDRL orders.

31.  On 8 February 2002, orders were published discharging the applicant
from the Army for completion of required service.

32.  On 12 February 2002, the applicant was honorably discharged under the
provisions of Army Regulation 635-200, paragraph 16-8.  He had completed
    9 years, 6 months, and 23 days of creditable active service with no
lost time.

33.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank, or rating in such
a way as to reasonably fulfill the purposes of his employment on active
duty.

34.  Army Regulation 635-40, paragraph 4-1 states a Soldier who is charged
with an offense under the UCMJ or who is under investigation for an offense
chargeable under the UCMJ which could result in dismissal or punitive
discharge may not be referred for, or continue, disability processing
unless the investigation ends without charges.

35.  Army Regulation 635-40, paragraph 4-3 states an enlisted Soldier may
not be referred for, or continue, physical disability processing when
action has been started under any regulatory provision which authorizes a
characterization of service of under other than honorable conditions.  The
following exception is provided:  The commander exercising general court-
martial jurisdiction over the Soldier may abate the administrative
separation.  This authority may not be delegated.  A copy of the decision,
signed by the general court-martial convening authority (GCMCA), must be
forwarded with the disability case to the PEB.  A case file may be referred
in this way if the GCMCA finds the disability is the cause, or a
substantial contributing cause, of the misconduct that might result in a
discharge under other than honorable conditions or finds other
circumstances warrant disability processing instead of alternate
administrative separation.

36.  Army Regulation 635-40 also prescribes the function of the TDRL.  The
TDRL is used in the nature of a “pending list.”  It provides a safeguard
for the Government against permanently retiring a Soldier who can later
fully recover, or nearly recover, from the disability causing him or her to
be unfit.  Conversely, the TDRL safeguards the Soldier from being
permanently retired with a condition that may reasonably be expected to
develop into a more serious permanent disability.
A Soldier's name may be placed on the TDRL when it is determined that the
Soldier is qualified for disability retirement but for the fact his or her
disability is determined not to be of a permanent nature and stable.

37.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Paragraph 1-24 states a Soldier may only be
considered for retention past the set release date when continued health
care is required or physical disability processing is required or has been
initiated.

38.  Army Regulation 635-200, paragraph 1-33 states disposition through
medical channels takes precedence over administrative separation processing
(except for chapter 10 processing).  When the medical treatment facility
(MTF) commander or attending medical officer determines a Soldier being
processed for administrative separation (to include separation under
chapter 14) does not meet the medical fitness standards for retention,
he/she will refer the Soldier to an MEB.  The administrative separation
proceedings will continue, but final action by the separation authority
will not be taken pending the results of the MEB.

39.  Army Regulation 635-200, paragraph 1-33 further states that if the MEB
findings indicate referral of the case to a PEB is warranted, 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 physical disability system if the
GCMCA determines that action under the UCMJ has not been initiated (i.e.,
court-martial charges) and that the disability is the cause, or a
substantial contributing cause, of the misconduct that led to the
recommendation for administrative elimination or finds other circumstances
warrant disability processing instead of alternate administrative
separation.

40.  Army Regulation 635-200, chapter 14 establishes policy and prescribes
procedures for separating members for misconduct.  Paragraph 14-12c(2)
states Soldiers are subject to separation for commission of a serious
offense and that abuse of illegal drugs is serious misconduct.  First-time
drug offenders in grades  E-5 through E-9, all Soldiers with more than 3
years total service, and second-time drug offenders in grades E-1 through E-
9 will be processed for separation.  A discharge under other than honorable
conditions is normally appropriate for a Soldier discharged under this
chapter.

41.  Army Regulation 635-200, paragraph 16-8 states hospital commanders who
are separation authorities may order separation of those Soldiers assigned
to medical holding detachments or companies who have less than 3 months to
serve to ETS following completion of hospitalization.  Soldiers must sign a
statement that they are wiling to accept separation under this paragraph.

DISCUSSION AND CONCLUSIONS:

1.  There appears to have been an injustice in this case.

2.  The applicant was assigned to WRAMC in October 1999 for medical
treatment/physical disability processing.  For reasons not fully explained
by the evidence of record, his physical disability processing took over two
years to complete.

3.  On 11 October 2001, the applicant's commander requested nonjudicial
punishment action be taken against the applicant for a positive urinalysis.
On       21 November 2001, the applicant accepted nonjudicial punishment
under Article 15, UCMJ for wrongful use of marijuana.

4.  As the applicant was an E-5, separation processing under the provisions
of Army Regulation 635-200, chapter 14 was required to be initiated.  It
appears that such separation processing was initiated, since the
applicant's trial defense counsel indicated on 30 November 2001 he had
received the chapter 14 packet but was returning it without action.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.

5.  In accordance with Army Regulation 635-200, the applicant was still
properly referred to an MEB and, on 28 November 2001, an MEB referred the
applicant to a PEB.  At that point, because the applicant was subject to a
discharge under other than honorable conditions, the MTF commander was
required to furnish copies of the approved MEB proceedings to the Soldier's
GCMCA and unit commander.  The GCMCA could then have directed, in writing,
that the applicant be processed through the physical disability system if
the GCMCA had determined the disability was the cause, or a substantial
contributing cause, of the misconduct or found other circumstances
warranted disability processing instead of alternate administrative
separation.

6.  However, in two memorandums dated 29 November 2001, the applicant's
commander informed the President, PEB, WRAMC and the PEBLO that the
applicant was not pending UCMJ or administrative actions and was not
flagged, which was clearly erroneous information.

7.  Since the applicant's PEB was completed on 7 December 2001, it appears
the applicant's commander deliberately misled the President of the WRAMC
PEB concerning the applicant's status.  Other evidence (the memorandums
relating to the applicant's referral for a mental health evaluation, which
referred to Article 15s the applicant did not receive and to another
Soldier by name) also indicate the applicant's commander was careless in
verifying facts before passing on information.

8.  The 7 February 2002 memorandum from the applicant's commander
requesting the applicant's medical board be terminated until the completion
of his chapter 14 proceedings was disingenuous (since the regulation
prohibited retention of the applicant for any reason except continued
health care or physical disability processing), unjust, and appears to have
been contrary to regulatory guidance.

9.  It would be equitable to correct the applicant's records to show the
GCMCA found other circumstances warranted the applicant's disability
processing instead of chapter 14 administrative separation and directed his
continued processing through the physical disability system.

10.  There is no error or injustice concerning the applicant's reduction in
rank by Article 15, however.  The Board is sympathetic with the
circumstances the applicant contends led to his one-time marijuana use;
nevertheless, as an         E-5 with over 9 years of service, he should
have known there would be serious consequences as a result of his drug use.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__tlp___  __bpi___  __jgh___  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 and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

     a.  showing his GCMCA found other circumstances warranted his
disability processing instead of chapter 14 administrative separation and
directed his continued processing through the physical disability system;

     b.  voiding his 12 February 2002 discharge under the provisions of
Army Regulation 635-200, paragraph 16-8;

     c.  reinstating the applicant's placement on the TDRL for the
diagnoses found by the 7 December 2001 PEB and showing he was placed on the
TDRL effective 13 February 2002;

     d.  affording him the opportunity to undergo a TDRL medical evaluation
as soon as possible; and

     e.  referring the results of the TDRL medical evaluation to the U.S.
Army Physical Disability Agency for appropriate disposition.

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
restoring his rank of Sergeant, E-5.




                            __Terry L. Placek_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006755                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060131                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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