MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 11 September 2003
                  DOCKET NUMBER: AR2003091662

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		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)

---

APPLICANT REQUESTS: In effect, that the reason for his discharge from the Army be changed from misconduct to another reason.

APPLICANT STATES: In effect, that he appeared before an Army Discharge Review Board (ADRB) in Los Angeles. In a self-authored letter, To Whom It May Concern, the applicant states, "after meeting, explaining and providing evidence to the board that my conduct was no fault of my own because of the mental condition, they approved my request that the misconduct and general/honorable discharge was harsh and unjust against me." On his DD Form 149, Application for Correction of Military Record, he states, that he believes the record to be in error in that, "just recently I had a correction made for both general/honorable (Misconduct) to change to (honorable) but they forgot to correct the (misconduct)." Without the correction, he is afraid that he will never receive further training to better his situation and will become homeless again.

In support of his application, the applicant submitted three self-authored statements, a letter from his treating psychiatrist, with documents showing that he is being treated for post traumatic stress disorder, and was so diagnosed on 13 January 2002; three pages of a five page listing showing a variety of medications that have been prescribed to the applicant (the oldest prescription being 18 July 2002); a statement from his pastor; a letter from the applicant's former commander for the period August 1994 through September 1996; a letter from a current active duty soldier who supervised the applicant at the time he was involved in a HUMMWV (High Mobility Multipurpose Wheeled Vehicle) accident which took place in Thailand in May 1995; and a letter from a former fellow soldier who states he knew of the accident and witnessed the applicant's scars and bruises; and a copy of the reissued DD Form 214, which has been recharacterized as Honorable.

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

The applicant enlisted in the US Army Reserve in the Delayed Entry / Enlistment Program (DEP) for 8 years on 1 April 1994. On 18 May 1994, the applicant enlisted in the Regular Army for a period of 4 years in the pay grade E-1. He successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia. On completion of his advanced training, he was awarded the military occupational specialty 31F, Mobile Subscriber Equipment Network Switching Systems Operator.

The applicant’s records show that the highest rank and pay grade that he attained was Private First Class, E-3. He was promoted to this rank on 1 February 1995.

---

On 11 December 1995, the applicant received nonjudicial punishment under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from his superior noncommissioned officer on 27 October 1995. The applicant also received nonjudicial punishment on 7 November 1996 for failing to go to his appointed place of duty on 1 August and 8 October and for absenting himself without authority on 22 October and remaining absent until 24 October 1996.

The applicant was reduced to the rank and pay grade, Private, E-1 with an effective date and date of rank of 11 December 1995.

On 28 October 1996, the applicant was given a mental status evaluation. He was examined by a psychologist who opined that the applicant's behavior was normal; he was fully alert and he was fully oriented; his mood or effect was unremarkable; and his thinking process, content, and memory were clear, normal, and good, respectively. In the opinion of the psychologist, the applicant had the mental capacity to understand and participate in separation proceedings and therefore psychiatrically cleared him for any administrative action deemed appropriate by command.

On 12 November 1996, the applicant underwent a separation physical examination and was found to be qualified for retention or separation. Item 45A (Physical Profile) of the Standard Form (SF) 88, Report of Medical Examination, shows a rating of all "1s" under the PULHES-Series.

On 12 November 1996, in conjunction with the above physical examination, the applicant completed a SF 93, Report of Medical History. In Item 8 (Statement of Examinee's Present Health and Medications Currently Used), the applicant entered the following: "I am in good health; I am not taking any medications; and I am not allergic to: blank [indicating no allergies to any medications or substances]." The applicant entered his signature in this item and in the appropriate block attesting to the accuracy of the information provided by him. In Item 25, the examining physician entered, "Healthy Adult Male."

During the period 23 October 1995 through 27 November 1996, the applicant was counseled a myriad of times for a multiple number of violations of the UCMJ and his unit's standard operating procedures, among which are: failing to report for and missing formations; failing to keep his supervisors advised of his whereabouts; failing to go to his appointed place of duty and failing to return to his appointed place of duty; being disrespectful to a commissioned officer; being disorderly in his conduct; damaging government property in conjunction with his failing to obey the instruction from his senior leadership; and being out of uniform.

---

On 2 May 1996, the unit commander recommended that a local bar to reenlistment be imposed on the applicant. The bar to reenlistment was approved on 9 May 1996. As justification for the bar to reenlistment, the unit commander submitted that the service member's duty performance while assigned to the unit, had been average to unsatisfactory and he [the applicant] should not be retained for further service in the Army. The bar to reenlistment was reviewed on 14 August and on 8 November 1996 and the proper authority made a decision, not to remove it.

On 10 December 1996, the applicant was notified by his unit commander of his intent to initiate separation action under the provisions of Army Regulation (AR) 635-200, paragraph 14-12b, for a pattern of misconduct. On this same date, the applicant consulted with counsel and completed his election of rights.

On 11 December 1996, the unit commander submitted the separation action and recommended that the applicant receive a general, under honorable conditions, discharge. On 17 December 1996, the intermediate commander recommended approval of the separation. On 6 January 1997, the approval authority approved the separation action and recommended that the applicant be issued a general, under honorable conditions, discharge.

The applicant was discharged on 17 January 1997, in the rank of private, pay grade E-1, under the provisions of AR 635-200, paragraph 14-12b, after having completed 2 years, 7 months, and 28 days active military service. Block 29 (Dates of Time Lost During This Period) shows that the applicant had 2 days lost due to absence without leave (AWOL). The narrative reason for separation was, "Misconduct."

The applicant made application to the ADRB for an upgrade of his discharge. On 23 January 1998, the ADRB notified the applicant that his request for an upgrade of his discharge had been carefully reviewed and the board had determined that he had been properly and equitably discharged; accordingly, his request for a change in the character and/or reason for his discharge had been denied. In his application to the ADRB, the applicant submitted no issues of propriety or equity for consideration.

The applicant made application to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge. On 26 May 1999, the ABCMR notified the applicant that his application for an upgrade of his general discharge to an honorable discharge had been denied. In his application to the

---

ABCMR, the applicant stated that family problems had caused him to go AWOL and that he would like an upgrade for VA (Department of Veterans Affairs) purposes.

On 29 March 2000, the applicant applied to the ADRB a second time; however, he was notified that no further action could be taken on his application since the ADRB had previously heard his case. He was advised, on 7 April 2000, that a discharge review is not subject to reconsideration but that he could request a personal appearance before the board.

On 14 June 2002, the applicant reapplied to the ABCMR for an upgrade of his discharge. On 30 October 2002, he was notified that his original application to the Board had been considered and had been denied; and therefore, his application was a request for reconsideration. In such cases, the Board reviews the request to determine if new evidence has been submitted to show fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence, discovered contemporaneously with or within a short time after the Board's original decision. No such evidence was found and more than one year had lapsed since the Board's original decision; therefore, no basis was found for resubmitting the request to the Board. The application was returned without action.

On 11 October 2002, the applicant made application to the ADRB for a personal hearing before that board. In his application, the applicant submitted no issues of propriety but submitted mitigating medical evidence in support of his case (a head injury he alleges to have sustained in an HUMMWV accident while deployed with his company to Thailand in April 1995). A hearing was conducted in Los Angeles, California, on 8 April 2003, and by unanimous vote, the ADRB upgraded the applicant’s discharge to honorable. This same board, after having considered the applicant's testimony, also by unanimous vote, determined that the reason for discharge was proper and equitable and voted not to change it.

Item 28 (Narrative Reason for Separation) on the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry “Misconduct.”

Item 25 (Separation Authority) on the applicant’s DD Form 214 shows the entry “AR 635-200 Paragraph 14-12b”. Item 26 (Separation Code) on his DD Form 214 shows the entry “JKA.” Army Regulation 635-5-1 (Separation Program Designator Codes) states the reason for discharge based on separation code “JKA” is “Misconduct."

---

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and 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.

The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. In developing the system, he functions have been considered under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4. The factors to be considered are as follows: P – Physical capacity or stamina; U – Upper extremities; L – Lower extremities; H- Hearing and ears; E – Eyes; and S - Psychiatric. An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness.

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 evidence of record shows that the applicant had received nonjudicial punishment under Article 15, had accumulated lost time due to AWOL, had a locally imposed bar to reenlistment imposed upon him, had received counseling numerous times, and was notified that he was being considered for separation from the Army. Each of these actions is indicative of misconduct.

3. The letter of support submitted by the individual alleging to be the applicant's former commander does not line up with other evidentiary documents, insofar as dates are concerned. The applicant's bar to reenlistment was approved in May 1995. The bar to reenlistment was recommended and imposed by other than the individual who allegedly was the applicant's commander during the period August 1994 to September 1996.

4. When the applicant underwent his physical examination and mental status evaluation, he was found to be in good health and was free of mental defects that

---

would prevent him from understanding and participating in administrative separations actions imposed on him by command. The physical profile series annotated to his medical forms was: P-1; U-1; L-1; H-1; E-1; and S-1. He was considered to possess a high level of medical and mental fitness.

5. Reports documenting his posttraumatic stress disorder were not submitted by the applicant to this Board until 10 June 2003 although the diagnosis was made on or before 13 January 2002.

6. A hearing was conducted and the ADRB upgraded the applicant’s discharge to honorable. This same board, after having considered the applicant's testimony and all available documentation voted unanimously to change the characterization of his discharge to Honorable; but, the board determined that the reason for discharge was proper and equitable and voted not to change it.

7. The applicant was assigned the appropriate narrative reason for separation on his DD Form 214 and on the reissued DD Form 214.

8. In view of all the circumstances in this case, the applicant is not entitled to a change or removal of the narrative reason for separation that he now seeks.

9. 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

_cjp ____ ___jtm___ ___sk___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003091662
SUFFIX
RECON
DATE BOARDED	2003/09/11
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1997/01/17
DISCHARGE AUTHORITY	AR 635-200, paragraph 14-12b
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 191	110.0200
3.
4.
5.
6.