MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002072591

         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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 her administrative discharge be changed to a medical separation.

APPLICANT STATES: That on 23 June 2001 she was prescribed Valium and rest because she was having chest pains. On 25 June 2001, she slipped on some water and fell down nine stairs. She was not permitted to seek medical attention until 27 June 2001 when x-rays and an MRI revealed a fracture, a traumatized spine, torn tissues, and disc dislocation. She was hospitalized for 48 hours and upon release was given a "dead man's profile," i.e., not to do anything. Each and everyday her profile was violated. She had to perform barracks maintenance. She was made to unload a truck of MREs (meals ready-to-eat). She was made to do yard maintenance. She was forced to paint rooms and unload duffel bags from vehicles. She did not have a conduct problem nor had she ever been in any type of trouble before she made a request to be relieved of her duties because of her home situation. She was denied meals at least three times during weekends because of duty.

When she joined the military, it was with the intent to support her children and travel while defending her country. After her husband was sentenced to 20 months and she had no immediate childcare provider, she requested one of several options. She requested to change her military occupational specialty (MOS) so her training would take no more than 5 weeks as opposed to the 12 weeks expected. She requested to change over to full-time National Guard so she could be home to handle her personal affairs. She also requested a 6-months leave of absence so she could go home and secure child care for her children and take care of legal proceedings. She was always told "NO!" Because her discharge papers read "uncharacterized/conduct and performance," she has not been able to secure a job.

After she was separated, an Inspector General investigation was done which found her chain of command responsible for mistreating her and mishandling her situation. The letter written to her stated those involved were reprimanded.

She provides medical reports and a 31 July 2001 letter to her from the Fort Jackson, SC, commanding general (CG) as supporting evidence.

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

She was born on 12 February 1967. She enlisted in the Regular Army on 14 March 2001 in pay grade E-4 for 4 years for training in MOS 71D (Legal Specialist).

A Developmental Counseling Form, DA Form 4856, shows the applicant was counseled on 25 May 2001 during in-processing on numerous subjects to include privately-owned vehicle policy (POV), the buddy system, and safety.
On 23 June 2001, the applicant was given a temporary (through 26 June 2002) profile due to a complaint of chest pain. She was given limitations of, in effect, doing nothing.

On 25 June 2001, the applicant received a mental status evaluation. She was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible. She was diagnosed with an adjustment disorder and depressed mood. It was noted that she reported a sense of anxiety and physical symptoms associated with her depression. It was remarked that external stressors such as her spouse's incarceration, a lack of viable child care during his extended absence, and business concerns contributed to her depression, anxiety, and sense of hopelessness. It was recommended she be separated under the provisions of Army Regulation 635-200, chapter 11 due to her difficulty in adapting to military training and that her symptoms would likely worsen over time, further impeding her ability to adapt to training.

On 26 June 2001, the applicant was treated for a complaint of lower back pain. She was given a temporary profile of no running, sit-ups, push-ups, jumping, or squatting/kneeling, and no lifting or carrying over 15 pounds. On 5 July 2001, she was given a temporary profile for back, neck, and lower back pains with limitations of, in effect, doing nothing to include not lifting over 15 pounds.

A DA Form 4856 shows the applicant was counseled on 29 June 2001 concerning the disruption her personal problems were causing her and her classmates. She was not adapting to the military way of doing things and not focusing on training.

A DA Form 4856 shows the applicant was counseled on 4 July 2001 for having a POV parked in the parking lot in disregard of lawful orders issued by a noncommissioned officer (NCO) and company policy.

On 6 July 2001, separation action on the applicant under the provisions of Army Regulation 635-200, chapter 11 for entry-level status performance and conduct was initiated. The commander cited as the reasons for the proposed action the applicant's adjustment disorder and failure to adapt to the military environment.

On 6 July 2001, the applicant was advised of the basis for the contemplated separation action. She elected not to submit a statement in her own behalf and waived consulting counsel.

On 7 July 2001, the applicant wrote to the CG with complaints about her treatment. Her letter is not available.

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On 12 July 2001, the appropriate commander approved the recommendation to separate the applicant and directed she be given an uncharacterized discharge.

On 20 July 2001, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct. Her character of service was uncharacterized. She had completed 4 months and 7 days of creditable active service.

On 31 July 2001, the CG responded to the applicant's 7 July 2001 letter. He informed her that he had appointed an investigating officer (IO) to investigate her complaints and to find if any wrongdoing may have occurred.

On 1 August 2001, the IO investigated the applicant's complaints that her cadre purposely prevented her from talking with anyone in her chain of command and/or withheld information about her situation from the chain of command and that members of the cadre purposely caused her to violate her profile. The IO found that there was no indication that any member of the cadre purposely withheld information from the chain of command regarding her circumstances and no indication that she was denied access to any member of the chain of command. However, information about her situation was slow in getting into the hands of the command leadership who needed to deal with her court issues. When the company commander received notice about the applicant's court date, he worked out a plan for her to take 7 days leave to attend to the court matters. She was to return on 11 June 2001; she returned a day late in her POV. She indicated to the commander that she was not able to complete her business and that there were other court appointments forthcoming during training. The commander stated she could not return until after completing training as she had missed too much training, did not return on time, and was already given 7 days leave to deal with her issues. He requested information several times from her about the pending appointments. She provided only one appointment and the commander was successful in changing it to a later date. In the IO's opinion, the cadre and chain of command did everything possible to accommodate her situation.

The IO found that there was no indication that any member of the cadre or chain of command forced the applicant to violate her profile based on their interpretation of the profile. However, it was the IO's judgment that she was assigned details such as painting (discipline for an Article 15, which is not available) which were not in keeping with the intent of her profile. Her drill sergeant knew about her profile and instructed her not to carry more than one bucket of paint at a time. He told her not to violate the time required to stand by painting the bottom of the wall while seated and when standing to paint the top of the walls. He further clarified for her to put an extended handle on the roller so as not to put a strain on herself in reaching the high areas. The IO noted that the applicant had received a "breathe at your own pace profile" after she was diagnosed with depression which stated she could not do anything and she felt being put on cleaning details violated her profile. The IO interviewed Lieutenant Colonel G___ (apparently the doctor who gave her the profile) who responded that the profile did not preclude her from sweeping, mopping, or doing routine details. He interviewed the NCO in Charge of Patient Administration who indicated the profile would allow her to paint, with restrictions of how she painted, as well as conduct routine details such as sweeping and mopping. The IO did not find any indication that the applicant was forced to violate her profile but believed the cadre was following the letter of the law and not the intent of the law with her profile and that other punishment could have been used instead of details that could have potentially worsened the situation.

The IO recommended that the battalion commanders and cadre review profile procedures and be briefed by a medical authority responsible for profiling to ensure they understood profiling, profile violations, and profiling procedures. The IO opined that the officers and NCOs of the applicant's unit were professional soldiers with a genuine concern for their soldiers and believed they were dedicated to the health and welfare of all the soldiers placed under their care.

Army Regulation 635-200, chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct that does not qualify for retention: cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status. (For Regular Army soldiers, entry-level status is the first 180 days of continuous active duty.)

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 purpose of his employment on active duty.

On 24 July 2002, the ADRB denied the applicant's request to change the description of her service from uncharacterized.

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. 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.

2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights. A chapter 11 discharge is used for entry-level soldiers not qualified for retention for one of several reasons, including if they cannot meet the minimum standards prescribed for successful completion of training because of a lack of ability. The evidence shows that the applicant did not have the ability to complete training because so much time was taken away from training due to her civil court appointments and family problems. The military environment is not amenable to normal civilian remedies (such as leaves of absence) in resolving such problems and it appears the applicant could not adjust to that fact. The uncharacterized discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3. An uncharacterized discharge is not meant to be a negative reflection of a soldier’s military service. It merely means that the soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. The applicant may want to so inform any potential employers.

4. There is no evidence to show that it was the applicant’s medical condition that precluded her from successfully completing training. She never had a permanent profile. Her counseling statements indicated it was her personal problems that caused her unacceptable performance. Therefore, there is no evidence which would justify changing her administrative separation to a medical separation.

5. It appears the applicant makes more contentions with this application regarding the "violations" of her profile than she did when she contacted her CG. There is no evidence to show her cadre and command were reprimanded regarding her treatment. On the contrary, the IO found that while the cadre strictly interpreted the "law" of her profile rather than the "intent", they otherwise did not violate her profile.

6. 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

__CLA__ ___MHM___ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072591
SUFFIX
RECON
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	2001/07/20
DISCHARGE AUTHORITY	AR 635-200, ch 11
DISCHARGE REASON	A04.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.