RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060012688 


	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.  



	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: 

	a.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his prior service in the Selective Reserve;

	b.  voiding his illegal, involuntary discharge, as well as expunging his entire military background and records from the Department of the Army system;

	c.  reimbursement of $646.00 forfeited due to an Article 15; and

	d.  investigation of his entire chain of command.

2.  The applicant's issues are provided in a DA Form 2823 (Sworn Statement), dated 9 August 2006 and in his "Case Details" submitted to his United States (US) Senator and US Congressman from the State of Florida.  In essence, the applicant alleges that he was released from active duty based on illegal discharge proceedings; that his separation packet contains erasures and unsigned, blank documents.  He contends that his Article 15 was processed illegally because it was "annulled" the moment white-out was used on the document.  He wants the US Senate to investigate his discharge and place his former chain of command under investigation for illegal activities, including for threatening and harassing Soldiers. He also wants his former commander and first sergeant prosecuted in a Federal court, his entire record deleted from the DA system, and to make a statement in front of the entire media.

3.  The applicant's mother submitted a written request to her Congressman requesting that he investigate her son's involuntary separation.  She states that he has a strong case to take to the Federal Court of Appeals and bring a lawsuit against the Army; however, she convinced her son to give the Army one last chance to correct its error.  If the Army does not correct the error, then her son will pursue his case with the Federal Court of Appeals.  Her son has also talked about letting the public know about his case through the media, and she advised him that this is a good idea.  All she wants is what is best for her children and she wants this illegal action against her son investigated and completely overturned along with a Congressional Letter of Apology placed in his record.  Her son loves his country and supports it as the Bible tells him to do, and she will always guide him to make him the best Soldier and best Christian.


4.  The applicant's father sent a letter to his Senator requesting that he investigate the illegal action taken against his son.  He contends that his son was never given any information about his separation in an honest, moral or legal fashion.  The unit commander made his decisions based on void documents; the applicant's Article 15 was partially erased, voiding the document, and the Summarized Article 15 was also illegal because the commander did not initial the sites of the corrections.  These documents are preventing the applicant from transferring back to active duty or the privilege of serving his country again.  They have pursued his appeal through Congress and due to "certain reasons unknown" the Army Board for Correction of Military Records (ABCMR) will have to take 10 months to conduct an investigation before his son will be compensated and the entire illegal separations packet from the Army will occur.  This has caused the applicant to get into debt and experience hardship.

5.  In his DA Form 2823, the applicant contends that his Article 15 is illegal due to corrections made with white-out; that his counseling statements do not contain legal statements required by Federal law advising him of his rights; that his appeal packet was destroyed by a sergeant; that his Article 15 was processed illegally because he was not allowed to collect statements in his own defense; that he never threatened another Soldier as stated in his counseling statement; and that the Army Reserve owes him a $5,000.00 enlistment bonus

6.  The applicant provides a copy of his discharge packet and associated documents.

CONSIDERATION OF EVIDENCE:

1.  The evidence of record shows that on 19 September 2001, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years.  He was ordered to initial active duty for training from 9 July 2003 through 26 September 2003.  He trained in, was awarded, and served in military occupational specialty (MOS) 92W (Water Treatment Specialist).  

2.  On 29 March 2004, the applicant was discharged from the USAR.  He enlisted in the Regular Army on 30 March 2004 for a period of 3 years. 

3.  On 11 Apr 2006, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 5-17 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) by reason of other designated physical or mental condition, with an honorable discharge.  The unit 

commander indicated that the applicant had been diagnosed with a mental condition which manifested a disturbance of emotional control sufficiently severe that the applicant's ability to effectively perform military duties was significantly impaired.

4.  On 11 April 2006, the applicant consulted with legal counsel, was advised of the ramifications of the proposed discharge and the rights available to him.  He was provided an opportunity to submit statements in his own behalf, and did not avail himself of the opportunity.

5.  On 19 April 2006, the separation authority waived further rehabilitation efforts and directed the applicant be released from active duty with an honorable discharge.  Accordingly, on 6 May 2006, the applicant was transferred to the US Army Control Group (Annual Training) after completing 2 years, 1 month, and 7 days of active military service.  His service was characterized as honorable.

6.  The applicant attained the grade of specialist/E-4 and received the Afghanistan Campaign Medal, the Combat Action Badge, the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.  He served in Afghanistan from 19 January 2005 through
17 January 2006.

7.  The applicant's discharge packet contained the following documents:

	a.  On 23 November 2005, the unit commander requested a mental health examination of the applicant.  He indicated that, although the applicant was already being treated by mental health and he was not a threat to other Soldiers, he had become more emotional and temperamental.  He had been moved to four different jobs and assigned to three different platoons, and had even been transferred to K-2 (Uzbekistan), but his behavior continued to worsen.  The commander indicated the applicant would get angry when counseled, blamed others for his faults, did not trust anyone in the unit, refused to get along with his supervisor, and threatened to slit a fellow Soldier's throat.  The commander stated the applicant admitted that he had been on "medication" since he was in the 4th grade.

	b.  DA Form 3822-R (Report of Mental Status Evaluation), dated 29 November 2005.  The applicant was command-referred to the 254th Medical Detachment (Combat Stress Control) for evaluation based on a chronic history of behavioral and interpersonal problems leading to poor job performance.  The 

applicant met the criteria for a Generalized Anxiety Disorder and Pervasive Developmental Disorder, Not Otherwise Specified, both characterized as long standing conditions that existed prior to military service.  He also displayed personality traits that contributed to his somewhat odd, anxious and rigid style of interacting with others.  The psychiatrist indicated the applicant had shown some gains via medication, counseling and group therapy, and that he expressed a desire to leave the military and not make the military his career.  He was cleared for administrative separation.

	c.  A Summarized Article 15, dated 26 September 2005, for two specifications of violating a lawful general order by failing to maintain positive personal control of his assigned weapon.  The punishment consisted of 7 days of extra and 7 days of restriction, suspended to be automatically remitted if not vacated by 6 October 2005.  The applicant authenticated this document with his signature and elected not to appeal.  The only corrected error on this document was crossing out ""Bagram Airfield, Afghanistan" and inserting "K2, Uzbekistan." The error was not initialed.

	d.  DA Form 2627, Article 15, dated 23 November 2005, for two specifications of failing to go to his appointed place of duty; dereliction of duty in that he negligently failed to oversee local nationals while performing Local National Escort (LNE) duty; and disobeying a lawful order by failing to read his essay at a platoon meeting.  The applicant did not demand trial by court-martial.  He appealed the Article 15 and submitted a personal statement; his appeal was denied.  There is evidence of "white-out" in the punishment block (Block 4) after the words, "Forfeiture of $323.00."

	e.  DA Form 4856 (Developmental Counseling Form), dated 12 December 2005, for failing to be at his prescribed place of duty.  He was advised that further misconduct could result in separation from the Army through administrative elimination.  The applicant agreed with the counseling statement, signed it, and wrote in "I am asking to be separated do (sic) to the fact I am no longer capable for military service."

	f.  DA Form 4856 for failing to be at his prescribed place of duty.  When the sergeant went to his room to find out why he had not reported to work, he found the applicant in bed, dressed in his full physical fitness uniform, to include his shoes, and had to be awakened.  He was again advised that further misconduct could result in separation from the Army through administrative elimination.  He indicated that he disagreed with the counseling statement, signed it, and wrote in "I demand to see legal and a lawyer ASAP."

	g.  A counseling statement for the month of November 2005 wherein it was annotated that the applicant's performance had improved since he began his medication, although the applicant still demonstrated a pattern of forgetfulness and untimeliness.  The applicant agreed with the counseling and signed it.  

	h.  A counseling statement, dated 30 November 2005, wherein he was advised that he was being considered for administrative separation from the Army under the provisions of AR 635-200, chapter 5-17.  The counselor indicated the applicant still continued to forget tasks and was unable to remain focused.  He was provided 30 days on his medication regimen to determine whether his performance improved.  The applicant agreed with the counseling statement and signed it. 

	i.  A counseling statement, dated 16 November 2005, for failing to be at work as prescribed.  He showed up at work with his hygiene bag, toothbrush, and toothpaste in his hands, looking as if he had just awakened.  He was again advised that further misconduct could result in separation from the Army through administrative elimination.  The applicant agreed with the counseling statement and signed it.  

	j.  A counseling statement, dated 8 November 2005, for failing to meet his squad leader in order to go see the chaplain.  The applicant agreed with the counseling and signed it.  He was assigned corrective training.

	k.  A second counseling statement, dated 8 November 2005, for reading a book while on LNE duty.  The applicant agreed with the counseling statement and signed it.  He was given the task of writing a 600 word essay on what could happen if he was not watching the locals while on LNE duty, and told that he would have to read it at the platoon meeting on 10 November 2005.

	l.  A counseling statement, dated 28 September 2005, for arriving late for extra duty.  The applicant agreed with the counseling statement, signed it and wrote in "Next CSC session I am going to tell the Dr. that I don't have the ability to deal with the company and the deployment anymore.  I am asking as a Christian and honest person for the command to send me back to Germany.  This in my opinion is the best for me and my fellow Soldiers."

	m.  A counseling statement, dated 17 September 2005, from his squad leader for failing to maintain accountability of his assigned weapon.  This statement read, in part:  "You are being counseled on your failure to maintain accountability of your assigned weapon while assigned to the Force Protection 

Team which is the second time…Three different Soldiers maintained accountability of your weapon and during the day, I inquired about your location and that if you had returned for your weapon.  No one knew of your whereabouts because you had taken it upon yourself to move to another room in the building without informing anyone.  At 1800 hours, I went to your assigned room to check on the status of your weapon; you weapon was still with another Soldier.  At 2300 hours, SSG ___ the SOG for the night shift Force Protection came to my room to inquire about your weapon and I informed him that your weapon was being secured by another Soldier and that you had not retrieved it.  When I asked you where your weapon was, you replied that you were tired and forgot where you put your weapon.  This behavior while deployed is dangerous not only to yourself but each and every individual within range of your weapon should it fall into the wrong hands."  The applicant agreed with the counseling statement, signed it and wrote "SSG ___ whom I served under was involved with this situation completely.  I asked SFC ___ and SSG __ that I need SSG ___ sworn statement.  I also told my squad leader that my medications are very strong.  My alarm clock doesn't wake (sic) sometimes.  I have the bottles as proof…Since I have been taking these meds. Sometimes I get very drowsy and luckily this hasn't happened before."

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40, that interferes with assignment to or performance of duty.  The regulation requires that the condition interferes with the Soldiers’ ability to perform duty, and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired.  Army policy states that the service of personnel separated under this paragraph will be characterized as honorable, general, under honorable conditions, or uncharacterized if in entry-level status.    

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 2005.  It provides, in pertinent part, forfeitures imposed by a company grade commander may not be applied for more than 1 month; for example, a company grade commander may impose a forfeiture of 7 days pay for 1 month.


DISCUSSION AND CONCLUSIONS:

1.  The applicant had prior service in the Selected Reserve.  Therefore, he is entitled to have his record corrected to show this service as directed below.

2.  The Board found nothing illegal or improper with the applicant's 23 November 2005 Article 15.  The applicant did not demand trial by court-martial, and he was given the opportunity to appeal and his appeal was denied.  The punishment imposed called for forfeiture of $323.00, not $646.00 as the applicant alleges.  There were words added to the forfeiture punishment after the dollar amount, but those words were removed.  The resultant forfeiture punishment was well within the limits available to the applicant's company grade commander.  The "white-out" of the words after "Forfeiture of $323.00," does not invalidate the Article 15.  There were no obvious administrative errors and the Article 15 was reviewed and approved by a legal officer.

3.  The only correction on the applicant's Summarized Article 15 was the changing of the location from "Bagram Airfield, Afghanistan" to "K2, Uzbekistan." This change did not invalidate the Article 15.  Although the unit commander did not initial the change, this error is harmless and did not prejudice the applicant.  The applicant did not appeal this action.

4.  The applicant was diagnosed by a medical doctor trained in psychiatry as having a "Generalized Anxiety Disorder and Pervasive Developmental Disorder, Not Otherwise Specified, both characterized as long standing conditions that existed prior to military service."  Subsequent to this diagnosis, the applicant was notified that immediate separation would not be pursued, rather he would be given the opportunity to adjust to his medication to see if his conduct would improve.  By the applicant's own admission, he had been on "medication" since the 4th grade, corroborating the psychiatrist's impression of a long standing condition which existed prior to military service.  

5.  Before initiating action to release the applicant from active duty, the command ensured the applicant was appropriately counseled about his deficiencies, which could lead to separation.  He was fully apprised of what type of conduct could lead to his discharge. Further, once diagnosed with a mental condition, he was appropriately counseled on the basis of his proposed discharge.  

6.  On at least two occasions, the applicant indicated that he wanted to return to Germany because he could not deal with his deployment, that he no longer wanted to make the Army a career and he wanted to leave active duty.  When 

administrative discharge proceedings were initiated, the applicant failed to submit a statement in his own behalf expressing disagreement with the proposed separation, thereby signaling his tacit agreement.

7.  The applicant’s discharge proceedings were conducted in accordance with law and regulations and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of that the applicant's discharge was based on voided, illegal documents.  The sole reason for the applicant's discharge was his diagnosis of a "Generalized Anxiety Disorder and Pervasive Developmental Disorder, Not Otherwise Specified."  Despite the fact the applicant received NJP on two occasions, was counseled repeatedly, and was given rehabilitative transfers on four occasions, his service was characterized as honorable.  The Board found no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

8.  The ABCMR is not an investigative board.  The ABCMR considers the evidence available in the applicant's OMPF and the evidence submitted by the applicant in making its decisions.  The burden rests with the applicant to obtain any evidence he wishes the Board to review and consider.  Further, this Board is not the appropriate forum in which to request an investigation of his chain of command.  

9.  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.  Given the above, the applicant did not submit any evidence that would satisfy this requirement.  Therefore, he is not entitled to having his discharge voided, his record expunged from the Army system, reimbursement of $646.00, or having his entire chain of command investigated.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__lds___  __jtm___  __rsv___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's 6 May 2006 DD Form 214 as follows: 

	a.  Item 12d (Total Prior Active Service) to read "00 02 18;" and

	b.  Item 12e (Total Prior Inactive Service) to read "02 03 22."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to voiding his discharge, expunging his record from the Army system, reimbursing him $646.00, or having his entire chain of command investigated.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012688
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20060506
DISCHARGE AUTHORITY
AR 635-200, Chap 5
DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.