IN THE CASE OF: BOARD DATE: 03 SEPTEMBER 2008 DOCKET NUMBER: AR20080007275 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, that his general discharge be upgraded to an honorable discharge. 2. The applicant essentially requests that the Army Board for Correction of Military Records (ABCMR) review the information and evidence in his case because the counseling sessions he received on active duty coincided with his kidney surgery. He also states, in effect, that he has a service-connected kidney condition, and asks for a longitudinal review of his discharge. He further states that he was on a less strenuous medical profile, but that this profile was not respected, and that he complied to the best of his ability. 3. The applicant provides a copy of his Army Discharge Review Board (ADRB) proceedings in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show that he enlisted in the Regular Army on 20 November 2002 for training in military occupational specialty (MOS) 91W (Health Care Specialist). He completed basic training at Fort Jackson, South Carolina, then was reassigned to Fort Sam Houston, Texas for advanced individual training (AIT) in MOS 91W. However, the applicant failed to complete AIT in MOS 91W, and was reassigned to Fort Lee, Virginia to attend AIT in MOS 92G (Food Service Specialist). After completing this training, he departed for a tour in Korea in October 2003. 2. Between January 2004 and June 2004, the applicant was repeatedly counseled for various offenses such as failing to report on time for duty; failing to report to sick call during the normal hours for sick call; failing to follow a lawful order; disrespect towards a noncommissioned officer; failing to follow military customs and courtesies, which included saluting officers with his left hand; failing to display fundamental military bearing; failing to obey orders from his superiors; overall poor performance of duty; and utilizing the troop medical clinic (TMC) for non-medical reasons. 3. On 12 May 2004, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command. 4. On 24 May 2004, a medical examination was completed on the applicant, and he was essentially found medically qualified for both service and separation. 5. On 2 June 2004, the applicant's commander informed him that he was initiating action to separate him from the United States Army under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel) prior to the expiration of his term of service due to the commission of minor disciplinary infractions. He also essentially recommended that he receive a general discharge. He also advised him of his rights. The applicant acknowledged receipt of this notification on 8 June 2004. 6. In a memorandum for record, dated 4 June 2004, the Brigade Flight Surgeon for the applicant's TMC essentially stated that the applicant had consistently obstructed the operations of the TMC due to his constant unnecessary visitations since he began receiving care there upon his assignment to the brigade. He also stated that he had never witnessed a Soldier so brazenly exhibit a weekly habit of malingering in his 17 years of service. He further stated that the applicant had come to the TMC seeking care over 35 times, most of which were unauthorized by his chain of command and without a signed sick call slip. He continued by stating that in fact, the majority of the applicant's visits occurred during non-sick call hours, and that the applicant had been repeatedly counseled by both his TMC staff and his chain of command on proper sick call procedures. He did state that the applicant was treated for a legitimate medical problem in January 2004 with the removal of a kidney stone; however, the vast majority of his incessant visits to the TMC involved no new medical issues and consisted mostly of plea-bargaining for modifications to his desired profile. He also stated that the applicant's continual visits wasted the time of his staff and seriously undermined the time and care devoted to other Soldiers actually requiring medical attention. He gave two examples of the applicant's visits to the TMC, in which the applicant requested a medical profile in March 2004 to not work in the brigade dining facility (DFAC) [which was his place of duty] because the odor of the food made him sick, and that in June 2004, the applicant requested a medical profile allotting him adequate time to use the latrine. He also found it disturbing that the applicant seemed to enjoy wasting the time of his medical staff and avoiding work, and that he could not more strongly affirm that the applicant had consistently malingered to avoid his regular duties. 7. In a memorandum for record, dated 10 June 2004, the Noncommissioned Officer in Charge of the Patient Administration Division of the TMC essentially stated that he counseled the applicant about his frequent visits to the TMC. He also stated, in pertinent part, that he informed the applicant that he could be charged under Article 115 (Malingering) of the Uniform Code of Military Justice. He also stated that on 9 June 2004, the applicant returned to the TMC for sick call, and showed him a sick slip which had a list of requests by the applicant. He essentially informed the applicant that there was nothing on the sick call slip stating that he had a new illness, not to mention the fact that the applicant's first sergeant or commander did not sign the sick call slip. 8. On 15 June 2004, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him for the commission of minor disciplinary infractions under Army Regulation 635-200, Paragraph 14-12a and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights. He also understood that he was not entitled to an administrative separation board because he did not have 6 years of total active and reserve military service at the time of his separation and was not being considered for separation under other than honorable conditions. He elected to submit a statement in his own behalf. The applicant also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that if he received a discharge/characterization of service which was less than honorable, he may make an application to the ADRB or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. 9. In his statement in his own behalf, the applicant essentially stated that he joined the Army in September 2002 after college, and made the decision because his great grandfather was in the Army in World War II and was killed trying to save a fellow Soldier; his father was drafted in the military and had a positive experience during his time in service; and because our country was facing a great deal of terrorism and thought that he could help in a time of need. He also stated, in effect, that he had been in the military almost 2 years at that point, and detailed highlights of his service, which included receiving a certificate of achievement and three coins, not receiving any nonjudicial punishment, and helping others and staying positive. He further related the problems he had been having with his kidneys, which included surgery in January 2004 to correct those problems, but that those problems continued after his surgery. 10. In an undated memorandum, the proper separation authority approved the applicant's separation from the Army under the provisions of Army Regulation 635-200, Paragraph 14-12a, and essentially directed that he be issued a general discharge. On 14 July 2004, the applicant was discharged accordingly. 11. On 20 February 2008, the applicant personally appeared before the ADRB in Los Angeles, California; however, the ADRB denied the applicant's petition to upgrade his discharge, change his narrative reason for his separation, or change his reentry (RE) code. 12. The applicant essentially requested that the ABCMR review the information and evidence in his case because the counseling sessions he received on active duty coincided with his kidney surgery. He also stated, in effect, that he has a service-connected kidney condition, and asked for a longitudinal review of his discharge. He further stated that he was on a less strenuous medical profile, but that this profile was not respected, and that he complied to the best of his ability. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. 14. Army Regulation 635-200, paragraph 3-7a also provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 15. Army Regulation 635-200, paragraph 3-7b further provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 16. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This 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 that his general discharge should be upgraded to an honorable discharge. 2. The fact that the applicant did in fact have legitimate medical issues with kidney stones is without question. However, the applicant's contention that the counseling sessions he received on active duty coincided with his kidney surgery is not corroborated by the evidence of record, which clearly shows that medical personnel determined that there was no new recurrent medical issue. The evidence of record also shows that both his chain of command and the TMC staff determined that the applicant's repeated and unnecessary visits to the TMC were nothing more than malingering. 3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 4. The applicant also failed to provide evidence which shows that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade. Absent such evidence, regularity must be presumed in this case. 5. The applicant's record shows that he was repeatedly counseled for multiple infractions and, as a result, he was properly and equitable discharged under honorable conditions for the commission of multiple minor disciplinary infractions. 6. The applicant's entire record of service was considered. However, the offenses committed by the applicant, when taken together, so far outweighs his record of military service that upgrade of his discharge cannot be justified. In view of the foregoing, there is no basis for upgrading the applicant's general discharge to an honorable discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XXX __ __XXX__ __XXX__ 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. ___ XXX ___ 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) AR20080007275 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080007275 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1