RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                            01 NOVEMBER 2005
      DOCKET NUMBER:                    AR20050001005


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Ms. Carol Kornhoff                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in three separate applications, that the
decision of the administrative board held on 23 January 2004, be declared
void and that he be reinstated in the United States Army in the rank and
pay grade of sergeant (E-5). He also requests that he receive any and all
promotions that he may have been entitled to had he not been illegally
discharged.

2.  The applicant states that his discharge resulted from the actions of
the separation authority that took action on the recommendations of a
separation board.  He states that the separation board convened to
determine whether he should be separated from the Army under the provisions
of Army Regulation
635-200, chapter 5, section III, paragraph 5-13, based on personality
disorder.  He states that the board recommended that he not be retained in
the service to perform his current duties and that he be honorably
discharged.  He states that his separation was in error based on several
legal issues in that the action by the separation authority was taken
without the benefit of an accurate summation of the proceedings held by the
board; that the government recorder was negligent as she did not properly
summarize what transpired at the board for the legal advisor or the
separation authority; that the government recorder failed to provide the
findings and summary to the defense prior to action by the convening
authority; and that the legal opinion provided to the separation authority
did not address several legal issues that were raised by his defense
counsel.  He states that since the separation authority was not provided
defense material, the legitimacy of the board is questionable and that
since neither he nor his counsel had any notice of the impending action by
the separation authority, he did not have any rebuttal matters to consider
at the time he took action to order his discharge.

3.  The applicant goes on to state that during the board proceedings his
counsel raised three issues: that the proceedings did not comply with the
provisions of Army Regulation 635-200, chapter 5-13; that the government
recorder made an improper argument regarding rehabilitation; and that the
government recorder improperly injected the appearance of unlawful command
influence into the proceedings by arguing to the board members that their
senior had already determined that a discharge was the proper resolution
and that the board members should defer to the commander's decision.  He
states that the summarized record provided to the legal advisor and the
separation authority had no record of any of the previously mentioned
critical issues.  He states that Army


Regulation 635-200, chapter 2-10(h) mandates that "The proceedings of the
board will be summarized as fairly and accurately as possible" and,
therefore, the separation authority took unlawful action in ordering his
discharge in the absence of an accurate summary.

4.  The applicant continues by stating that in January 2003, while he was
on deployment orders, he discovered that his wife and children were subject
to possible deportation from the United States (US).  He states that after
his wife married him, she was disowned by her Turkish/German family and
that if his family were deported, they would have been forcibly returned to
Germany which was his wife's most recent previous residence.  He states
that under German law, even German-born Turks are ineligible for citizen
benefits and that without a family to return to and without a job, his wife
did not know where or how she would live.  He states that he went to his
unit and requested that his deployment be delayed until he could complete
the necessary Immigration Naturalization Service (INS) interviews and that
his unit was unwilling to allow him to delay deployment for the 2 months it
would have taken to conduct the INS interviews.  He states that his unit
was extremely unhelpful and that the stress of the situation led him to
request that he be relieved of his position in the company.  He states that
although his situation was unique, his command informed him, in writing,
that his situation was no different than many of the soldiers and
noncommissioned officers in the unit.  He states that his unit was aware
that the INS interview had to be conducted in person and that the unit's
answer to the problem was that he should fix the problem by physical
exercise and journaling.  He states that his situation led directly to a
deterioration of his performance and that he believes that his command
decided that he was no longer worth any effort on their part, so they acted
to separate him from the Army.

5.  The applicant states that after his return to the US he resolved the
INS situation, which was the basis for the entire situation and had efforts
been taken by his command to assist with his family situation, his
dysfunction in Iraq would never have occurred.  He states that after his
return from Iraq and after he resolved his family crisis, he performed his
duties well and that in his decision to retain or order discharge, the
separation authority is obligated to following the provisions of Army
Regulation 635-200, chapter 5-13.  He states that chapter
5-13 authorizes separation for a "deeply ingrained maladaptive pattern of
behavior of long duration that interferes with the solder's ability to
perform duty.  (Exceptions: combat exhaustion and other acute situational
maladjustments.)"  He states that the regulation also mandates, at
paragraph e, that separation processing may not be initiated under this
paragraph until the soldier has been counseled concerning deficiencies and
has been afforded ample opportunity to overcome those deficiencies as
reflected in the appropriate counseling or personnel records.  The
applicant concludes by stating that clearly his family situation met the
definition of an acute situational maladjustment; that the unit never gave
him ample opportunity to overcome his problem; that there was absolutely
nothing in his record during the board proceedings to show his subsequent
performance; and that although he raised these clear regulatory
requirements during the board proceedings, the members were incorrectly
told by government counsel to ignore them.  He states that the Government,
by its failure to provide a proper summarized record for the separation
authority, made a mockery of the standards required by Army Regulation 635-
200 and that at no time was a proper record detailing the issues raised by
his counsel at the board proceedings ever presented to the separation
authority.

6.  The applicant provides a copy of a Report of Proceedings by
Investigating Officer/Board of Officers; a transcript of the Administrative
Separation Board Hearing; a copy of his Certificate of Release or Discharge
from Active Duty (DD Form 214); a copy a memorandum from a Judge Advocate
Defense Counsel dated 9 February 2004, addressed to the Commander, United
States Army Garrison, Fort Riley, Kansas; and a copy of a Report of Mental
Status Evaluation.

CONSIDERATION OF EVIDENCE:

1.  On 13 March 1996, he enlisted in the Regular Army in San Juan, Puerto
Rico, for 3 years, in the pay grade of E-1.  He successfully completed his
training as a field artillery surveyor.  He was promoted to the pay grade
of E-2 on    13 September 1996; to the pay grade of E-3 on 13 March 1997;
and to the pay grade of E-4 on 1 April 1998.

2.  On 21 May 1998, the applicant reenlisted in the Army for 4 years in the
pay grade of E-4 and went on to successfully complete training as a
military policeman.  He was promoted to the pay grade of E-5 on 1 January
2001.

3.  The available records show that the applicant was seen at Community
Health Mental Services on (CHMS) 12 May 2003, after he was referred for
assessment upon returning from Iraq.  He was medically evacuated from the
combat theater after a suicide attempt by overdose.  After two separate
assessments, he was diagnosed as having an adjustment disorder with mixed
disturbance of emotions and conduct and a personality disorder, not
otherwise specified, with dependent and antisocial features.  The attending
psychiatrist identified his adjustment disorder as a maladaptive emotional
reaction to an identifiable stress, in this case deployment and the
separation from his wife.  The psychiatrist identified his

personality disorder as a long-standing, inflexible pattern of maladaptive
behavioral and emotions that occur in response to routine stresses of daily
life.  The psychiatrist stated that based on the personality disorder, at
the discretion of the command, the applicant could be separated from the
Army under the provisions of Army Regulation 40-501, chapter 3-35, and that
the adjustment disorder was a direct result of active military service and
would likely resolve spontaneously upon separation.  The psychiatrist
opined that the applicant should be considered potentially dangerous to
himself based on his recent statements and behaviors and that he should be
considered for administrative separation from the military in accordance
with Army Regulation 635-200, chapter 5-13, or any other administrative
process deemed appropriate by the commander.  The psychiatrist stated that
the applicant did not have a severe mental disorder and was not considered
in accordance with Army Regulation
40-501 to be mentally ill and that he did not meet the criteria for
initiation of a medical evaluation board.  He stated that the applicant had
minor mental conditions that continue to impair his ability to effectively
perform his assigned military duties.  The applicant was instructed to
return to the emergency room or CMHS for any psychiatric emergencies.

4.  The available records show that the applicant was assigned to the 977th
Military Police (MP) Company, 924th MP Battalion, Fort Riley, Kansas, on
23 January 2004, when a board of officers convened for the purpose of
determining whether the applicant should be retained on active duty.  The
Report of Proceedings by the Investigating Officer/Board of Officers shows
that all of the documentation that was applicable to the applicant's case
was available for review during the proceedings.  After numerous
individuals were questioned by the recorder and by counsel, the board
determined that the allegation in the notice of the proposed separation
(unavailable for review) was supported by a preponderance of the evidence.
The board recommended, in view of the findings, that the applicant not be
retained in the service and that his service be characterized as honorable.

5.  On 9 February 2004, the Judge Advocate (JA) Defense Counsel forwarded a
memorandum to the Commander, U.S. Army Garrison, Fort Riley, Kansas.  In
the memorandum the Defense Counsel stated that the action recommended by
the board against the applicant was legally invalid and requested that the
decision be changed to direct the applicant's retention on active duty.
The Defense Counsel stated that the government recorder failed to provide
him (the Commander, U.S. Army Garrison) or his legal advisor with an
accurate summary of the board proceedings.  The Defense Counsel stated that
the Government recorder did not provide the findings and summary to the
defense; that the legal opinion provided did not address several legal
issues in the case; and that no rebuttal was received because he did not
have notice of impending action.  In the memorandum the Defense Counsel
went on to express his contentions, beliefs and opinions and he listed what
he believed to be in violation and improprieties that were made during and
after the board proceedings.  The Defense Counsel concluded his memorandum
by stating that Army Regulation 635-200 mandates that the applicant be
retained in the Army for such time as the unit complies with chapter 5-
13(e) of Army Regulation 635-200.

6.  On 1 April 2004, the applicant was honorably discharged under the
provisions of Army Regulation 635-200, chapter 5-13, as a result of a
personality disorder.  He had completed 8 years and 19 days of total active
service.

7.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 5, paragraph 13 contains the
policy and outlines the procedures for separating individuals for
personality disorder, and provides, in pertinent part, that a soldier may
be separated for personality disorder (not amounting to disability) that
interferes 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.

8.  Army Regulation 635-200 also contains the policies for board
procedures.  Chapter 2-10(h) provides that the proceedings of the board
will be summarized as fairly and accurately as possible.  They will contain
a verbatim record of the findings and recommendations.

9.  Army Regulation 40-501, chapter 3 sets forth medical fitness standards
for retention and separation.  Paragraph 3-35 provides for individuals with
personality, sexual and gender identity, or factitious disorders; disorders
of impulse control not elsewhere classified; substance-related disorders.
It states, in pertinent part, that these conditions may render an
individual administratively unfit rather than unfit because of physical
disability.  Interference with performance of effective duty in association
with these conditions will be dealt with through administrative channels.






DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show 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 available records show that the applicant was discharged pursuant
to the recommendation made by a board of officers after he attempted to
commit suicide.  He underwent a Mental Status Evaluation and after two
separate assessments, the attending psychiatrist diagnosed him as having an
adjustment disorder and a personality disorder.  At that time, a board of
officers determined that he should not be retained in the Army and that he
should be honorably discharged in accordance with applicable regulation.
Accordingly, he was properly discharged.

3.  Army Regulation 635-200, chapter 2-10(h) provides that the proceedings
of the board will be summarized as fairly and accurately as possible and a
review of the documentation submitted by the applicant shows summarized
board proceedings in accordance with the regulation.  He has provided no
evidence to show that the proceedings are not accurate or unfair.  In fact,
the Report of Proceedings shows that all documentation that was applicable
in his case was available during the board proceedings.

4.  At the time of his Mental Status Evaluation, the attending psychiatrist
determined that his personality disorder may render him administratively
unfit rather than unfit because of physical disability in accordance with
Army Regulation 40-501.  Therefore, discharging him under the provisions of
Army Regulation 635-200, chapter 5-13, based on personality disorder was
proper.

5.  The contentions made by the applicant have been noted.  However, there
is no evidence in the available records that show that the decision made by
the board of officers to discharge him from the Army was in error or
unjust.  It appears that upon notification of the board's decision, the
applicant's counsel submitted additional matters and requested that the
decision be changed.  Although, the response to counsel's request is not
available for review, it is reasonable to presume that counsel's
contentions were reviewed by competent authority and a decision was made to
uphold the decision made by the board of officers.  Therefore, there is no
basis granting the applicant's requests to void the decision made by the
board of officers and to reinstate him on active duty.



6.  The applicant's contention that he was illegally discharged appears to
be without merit and his dissatisfaction with the decision made by the
board of officers to honorably discharge him from the Army after attempting
to commit suicide, is not a sufficient justification to warrant the relief
requested.

7.  In view of the foregoing, there appears to be no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___TO __  ___CK __  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.





                                  ____James Anderholm_____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2050001005                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051101                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |01042004                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 5-13                            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  192  |110.0300/REINSTATEMENT                  |
|2.  310                 |131.0000/PROMOTION                      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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