| Mr. Carl W. S. Chun | Director | |
| Mr. Luis Almodova | Analyst |
| Ms. Margaret K. Patterson | Chairperson | |
| Mr. Ronald E. Blakely | Member | |
| Mr. Frank C. Jones, II | Member |
APPLICANT REQUESTS: In effect, that his discharge Under Honorable Conditions (General) be upgraded to Honorable, that he be discharged for medical reasons, and that his rank and pay grade of Sergeant, E-5, be reinstated.
APPLICANT STATES: The applicant defers to counsel.
COUNSEL CONTENDS: Counsel makes no contention. The letter that was submitted is in effect, a letter of transmittal.
Neither the applicant nor counsel give a date of discovery or identify what alleged error or injustice they wish the Board to address. The applicant provides nothing for consideration by the Board beyond what is already stated in what the "applicant requests" above.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the US Army Reserve on 18 May 1981. On
29 September 1981, he enlisted in the Regular Army (RA) for a period of 4 years. He successfully completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 13B, Cannon Crewman.
On 29 May 1985, while at Fort Stewart, Georgia, the applicant reenlisted in the Regular Army for a period of 6 years for the Current Station Stabilization Reenlistment Option.
The applicant’s records reveal that he was promoted to the rank and pay grade, Sergeant, E-5, with an effective date of 1 November 1985. This is the highest rank and pay grade he held on active duty.
On 5 June 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty, PT [physical training] Formation, at 0600 hours and to Work Call Formation at 0830 hours on 23 May 1986. The punishment imposed consisted of 14 days extra duty. The applicant did not appeal the Article 15.
On 23 June 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty, Post Police Formation, at 0530 hours on 1 June 1986 and to Accountability Formation at 0600 hours, and Work Call Formation at 0830 hours on 5 June 1986. The punishment imposed was a reduction to the rank and pay grade, Specialist 4, E-4. The applicant appealed the Article 15, but it was denied.
On 17 July 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty, PT Formation, at 0600 hours on 27 June and 30 June 1986. The punishment imposed was a reduction to the rank and pay grade, Private First Class, E-3, and 14 days extra duty. The applicant appealed the Article 15, but it was denied.
On 31 July 1986, a bar to reenlistment was imposed on the applicant. In addition to his having received multiple non-judicial punishments under the provisions of Article 15, the commander reported the applicant's record of counseling as the foundational basis for the bar. Counseling was administered on the following dates: two counselings on 17 April, and one each on 8 and 16 April, and 8 May for non-payment of just debts. In addition, he was counseled for other factual and relevant indicators of untrainability or unsuitablity on 26 November 1985;
23 and 27 May; 5, 9, 13, 16, 22, and 30 June 1986.
On 16 October 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for willfully disobeying a lawfully given order from a non-commissioned officer on 3 October 1986. The punishment imposed was a suspended reduction to the rank and pay grade, Private, E-2; forfeiture of $167.00 pay, suspended for one month; 14 days extra duty; and 14 days restriction to his work area, billeting, dining facility, and place of worship. The applicant appealed the Article 15, but his appeal was denied.
On 29 August 1986, the unit commander notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, Chapter 14. The specific reason for his proposed action was "Acts or Patterns of Misconduct-Conduct Prejudicial to Good Order and Discipline."
On the above date, the unit commander initiated action to discharge the applicant from the Army under the provisions of Army Regulation 635-200, Chapter 14, for acts or pattern of misconduct-conduct prejudicial to good order and discipline. The applicant's commander recommended that his service be characterized as Under Other Than Honorable Conditions and that rehabilitative actions be waived. The remainder of the chain of command recommended that his service be characterized as Under Honorable Conditions and that he be issued a General Discharge.
On 17 September 1986, the applicant acknowledged notification, consulted with legal counsel, and was informed of the impact of a less than fully honorable discharge and elected to make a statement in his own behalf.
In his 17 September 1986, Statement for Chapter 14 Review, the applicant indicates that he felt that a chapter 14 discharge was inappropriate due to his medical problems. He indicated that he was sent to the TMC (Troop Medical Center) and to the DMH (Division Mental Health) for problems he was experiencing. He claims to have been diagnosed by one physician as having classic depression and by another as having a personality conflict with the Army. He stated that he wanted to stay in the Army, that he understood the seriousness of his conduct, and that he tried to correct it and would continue to do so. The applicant's allegation of his having classic depression was supported by a statement prepared by the division support command surgeon wherein he states, "[the applicant] has classic depression. His condition is manifested by sleep disorders. I feel that he is a good soldier and that the majority of his military 'shortcomings' stem from his illness. [The applicant] is now on medication for his illness and has shown improvement. I recommend that his illness be taken into consideration in his upcoming Chapter hearing."
The above information and diagnosis were refuted in reports made to command by the division psychologist on 31 July 1986 and by the division psychiatrist on
3 October 1986.
On 31 July 1986, the division psychologist cleared the applicant for any administrative action deemed by command. This clearance for action was made on evaluations made on the following dates: 3, 9, 18, 23, and 26 June and
28 July 1986. The division psychologist opined that, the problems the applicant had in getting up reflects poor motivation to go to work. It was his opinion that when the soldier was happy with what he was doing, he had no problems getting up. The soldier evidenced serious problems with taking responsibility for his behavior in that he tended to blame everyone but himself for problems he in large measure helped to create. He further opined, "This soldier does not yet appear ready to handle the responsibilities of being an NCO (noncommissioned officer) in the Army or of being a husband and father."
In a DA Form 2496, Disposition Form, Subject: Psychiatric Evaluation of [the applicant], prepared on 3 October 1986, the division psychiatrist reversed the diagnosis of Major (Classic) Depression stating that it was not warranted by DSM (Diagnostic and Statistical Manual of Mental Disorders) III criteria. The division psychiatrist diagnosed the applicant as having an adjustment disorder with mixed features of words, inhibitions, dysphoria, and interpersonal problems. The mental status evaluation revealed a calm white male with halting speech who was generally evasive in discussing his role in the nature of his problem.
Vegetation symptoms were minimal, his insight was poor, and his judgment was adequate. The psychiatrist added that the applicant had, on multiple occasions, requested medical statements or hospital admission to prevent disciplinary actions. The division psychiatrist psychiatrically cleared the soldier for administrative action deemed appropriate by command.
A mental status evaluation was conducted on 6 October 1986 and found the applicant's behavior normal. He was found to be fully alert and fully oriented. His mood or effect was found to be unremarkable, his thinking process to be clear, his memory good, and his thought content to be normal. The division psychiatrist found him to be mentally responsible and able to understand and participate in whatever administrative action deemed appropriate by command.
There is no evidence that the applicant was unable to perform duties in his primary military occupational specialty due to an illness or injury incurred or aggravated by service.
On 25 November 1986, the applicant was discharged in the rank and pay grade, PFC (Private First Class), E-3, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct-pattern of misconduct with an Under Honorable Conditions (General) Discharge. He was credited with 5 years, 1 month, and 27 days active military service. While in service, the applicant received the Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Parachutist Badge, the Driver and Mechanics Badge for Tracked Vehicles, Expert Marksmanship Qualification Badge with Rifle Bar, and the First Class [currently known as the Sharpshooter] Marksmanship Qualification Badge with Grenade Bar.
The applicant applied to this Board on 21 November 1986, before he was discharged, and asked that the nonjudicial punishments he had received on
5 and 23 June and on 17 July 1986 be set aside and that all rights and privileges be restored. This was his attempt at stopping the elimination action that had been initiated on him. This is evident in his witnessed statement which was handwritten at the bottom of the 2nd Endorsement of his discharge action to the approval authority by his brigade-level commander. In this statement he says, "I nonconcur with the contents of this package, however, I am signing this only in light of the orders issued to me on 18 and 25 November 1986. I do wish to appeal this action."
The applicant's request to this Board for the setting aside of the Articles 15 and the restoration of all rights and privileges was denied on 9 September 1987 (Docket Number: AC86-08632). The Board ruled that, "The NJPs were imposed in compliance with applicable laws, regulations and policies. The punishment imposed was not disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant's rights." He was notified of the Board's decision on 13 October 1987.
The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge. On 24 September 2001, the ADRB reviewed the applicant's request for an upgrade of his discharge and by unanimous decision denied the applicant any relief. On 28 September 2001, the ADRB notified the applicant that his application to that board had been denied and that he could apply to this Board for correction of his military records.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing. Such a case is to be referred to the officer exercising general court-martial jurisdiction. The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation. This authority may not be delegated. A copy of the determination must be entered into the case file when it is forwarded.
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.
2. The applicant was properly notified of the discharge action. He acknowledged the notification, his right to legal counsel, and he stated that he understood the rights available to him. He elected to make a statement in his own behalf.
3. In his statement, the applicant indicated that he felt the discharge proceedings to be unjust because of his medical problem. The applicant provided a statement from the Battalion Surgeon which indicated that the applicant was experiencing classic depression; however, this statement was refuted by a psychologist and a psychiatrist after the applicant had undergone extensive evaluation.
4. The evidence of record suggests that the applicant had, on multiple occasions, requested medical statements or hospital admission to prevent disciplinary actions. The Division Psychiatrist psychiatrically cleared the soldier for administrative action deemed appropriate by command.
5. The Division Psychologist likewise cleared the applicant for any administrative action deemed necessary by command. He attributed the applicant's problems on poor motivation to go to work and a reluctance in taking responsibility for his behavior in that he tended to blame everyone but himself for problems he in large measure helped to create.
6. There is no evidence, and the applicant has provided none, that he experienced an illness or sustained an injury that left him unable to perform duties in his primary military occupational specialty or that he was not fit for duty when he was recommended for discharge from the Army.
7. The applicant applied to this Board to have his Articles 15 set aside and to have all rights and privileges restored. The Board denied the applicant's request and ruled that the non-judicial punishments were imposed in compliance with applicable laws, regulations, and policies. The punishments imposed were neither unjust nor disproportionate to the offenses, and there was no evidence of any violation of any of the applicant's rights.
8. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB reviewed the applicant's request for an upgrade of his discharge and by unanimous decision denied the applicant any relief. The ADRB notified the applicant that he had been properly and equitably discharged and that he could apply to this Board for correction of his military records.
9. The evidence of record shows that the applicant was counseled in the written form and accepted NJP on numerous occasions. As such, the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.
10. The applicant has provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that his service mitigated his unacceptable conduct. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
11. The applicant has failed to submit evidence or has failed to would show error or injustice in the process which resulted in his discharge.
12. 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
__mkp___ __reb___ __fcj___ DENY APPLICATION
| CASE ID | AR2002078884 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030624 |
| TYPE OF DISCHARGE | GD |
| DATE OF DISCHARGE | 19861125 |
| DISCHARGE AUTHORITY | AR 635-200, Chapter 14 |
| DISCHARGE REASON | A67.00 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.0000 |
| 2. | 110.0000 |
| 3. | 110.0200 |
| 4. | 144.6700 |
| 5. | |
| 6. |
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