MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 August 2001
         DOCKET NUMBER: AR2001053917

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

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John P. Infante		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

APPLICANT STATES: That given the personal problems he was experiencing at the time, his discharge was too harsh. He also states that he needs an honorable discharge for his job. In support of his application he submits seven third party letters of support, a copy of his separation document (DD Form 214) and a copy of Child Protective Assessment Summary.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 30 June 1993 for a period of 4 years and training as a graves registration specialist. He successfully completed his basic, advanced and airborne training and was transferred to Fort Bragg, North Carolina. He was advanced to the pay grade of E-4 on 26 June 1995.

On 30 April 1996, nonjudicial punishment was imposed against the applicant for being disrespectful in language towards a superior noncommissioned officer. His punishment consisted of a reduction to the pay grade of E-3 and extra duty. He appealed his punishment and his appeal was denied on 22 May 1996.

The applicant was counseled on 11 June 1996 for communicating a threat to kill another soldier (his daughter’s stepfather). He was referred to the chaplain and mental health for an evaluation.

On 12 June 1996 the applicant was cited and counseled for disobeying a lawful order, being absent from his place of duty and carrying a concealed weapon on a military installation. He was counseled because he had an appointment for a mental status evaluation and after the physician indicated that he was being admitted to the hospital for a psychiatric evaluation, the applicant left the health clinic without permission, proceeded off post and procured a firearm and proceeded to look for another soldier whom he had threatened to kill. The applicant nonconcurred with the counseling and explained that he believed his daughter to be in danger of sexual abuse by her stepfather (the soldier he was looking for) and he had exhausted all avenues in attempts to get help in the matter.

He was admitted to Womack Army Hospital and underwent an inpatient psychiatric evaluation from 12 June to 14 June 1996. The chief of the Psychiatry Service determined that the applicant’s presentation was consistent with the diagnosis of a significant personality disorder with Narcissistic and Antisocial Traits, that was a chronic, maladaptive pattern of thinking and behaving that was significantly impairing the applicant’s ability to function under the requirements of military service. The psychiatrist recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 5 for Personality Disorders. The psychiatrist also cleared him for any action deemed appropriate by the command and placed duty restrictions on the applicant of no contact with weapons and restriction to post and barracks with command supervision.

He also underwent a mental status evaluation at the Division Mental Health Clinic and was deemed mentally responsible on 17 June 1996.

On 18 July 1996 his commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14-12c for commission of a serious offense. He cited as the basis for his recommendation that the applicant had been carrying a weapon after he had been ordered not to possess a weapon and after he had communicated a threat to kill another soldier. The commander recommended that he receive a general discharge and the applicant was advised of his rights. The applicant acknowledged receipt of the notification and waived his right to consult with counsel at the Trial Defense Service.

The commander initiated the recommendation for discharge citing the applicant’s continuous disregard for military rules and his misconduct. Accordingly, the appropriate authority approved the recommendation and directed that he be furnished a General Discharge Certificate.

On 20 August 1996 the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct. He had served 3 years, 1 month and 21 days of total active service. His awards include the National Defense Service Medal, the Army Service Ribbon and the Parachutist Badge.

The applicant applied to the Army Discharge Review Board (ADRB) and cited to that board in his application that his daughter was born on 6 October 1995, several months after they had split up. She was married and living with another soldier on Fort Bragg. He went on to state that he learned that the other soldier was assaulting his daughter’s mother and possibly sexually assaulting her two half sisters. He continued by stating that he was concerned for the welfare of his daughter and contacted both civil and military authorities. He received no help from officials and then hired a lawyer to gain custody of his daughter. Within a month of her birth he contends that he found evidence of both physical and sexual abuse and at one point the other soldier admitted and bragged about it. In June 1996 his daughter’s mother disappeared with his daughter after she had made threats of kidnapping her. He then learned that his wife’s husband was separating from the service and he called his unit and informed them that they had 24 hours to arrest him or he (the applicant) would find him and kill him. He also states that he was immediately admitted to mental health, was able to escape and get off post to acquire his rifle. However, he was able to calm down and then called his commander, who was new to the unit and appeared willing to help him with his problem so he turned himself in. Later that afternoon he contacted his lawyer and social worker but was locked up until the other soldeir could leave post. It was a year before he found out the whereabouts of his daughter and she continues to be abused and molested. He admitted to the board that he knows what he did was wrong but that he was concerned for the welfare of his daughter. He is currently working as a security officer and is going to college with the ultimate goal of becoming a police officer. However, he needs an honorable discharge and the narrative reason for his discharge changed.

The ADRB determined that he had been properly discharged and voted unanimously to deny his application on 30 August 2000.

The supporting documents consist of seven third party statements attesting to the applicant’s good character and mental state of mind. He also provides a child protective summary from the Iowa Department of Human Services regarding an alleged sexual abuse report regarding two children belonging to the applicant’s daughter and the soldier the applicant threatened to kill. The report alludes to the fact that the mother’s brother was the abuser. It does not appear that the former soldier resides in the home. The report is date 15 October 1999 and was obtained by the applicant by written request.

A review of the applicant’s military personnel records failed to reveal that he had any dependents during his service and the documents submitted by the applicant indicate that the child has a last name other than the applicant’s. It appears that the child has the last name of the soldier the applicant threatened to kill.

Army Regulation 635-200, paragraph 5-13 provides the criteria for discharge because of a personality disorder. It states, in pertinent that a soldier may be separated for personality disorders that interfere with assignment to or performance of duty. The diagnosis of personality disorder must have been established by a physician trained in Psychiatry and psychiatric diagnosis. Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the soldier’s ability to function effectively in the military environment is significantly impaired. However, commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a soldier who may have committed serious acts of misconduct and separation for personality disorder is not appropriate when separation is warranted under chapter 14.

Chapter 14 of that regulation establishes policy and procedures for separating personnel for misconduct. Specific categories include minor infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave. Although a discharge under other than honorable conditions is normally considered appropriate, an honorable or general discharge is authorized.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights and his service was properly characterized.

2. Although the applicant has submitted no evidence to substantiate his contention that he had a daughter and that his daughter’s safety and well being were the reasons for his alleged misconduct, the Board finds that the misconduct for which the applicant was accused was more than sufficient to warrant the discharge he received. While there may have been mitigating circumstances involved in his case, they are not sufficient to warrant an upgrade of his discharge when compared to his otherwise undistinguished record of service.

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. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jpi____ ___be___ __rjw____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001053917
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/02
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.000
2.
3.
4.
5.
6.