RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070010450 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Rene’ R. Parker 

Analyst


The following members, a quorum, were present:


Ms. Barbara Ellis

Chairperson

Mr. Jose Martinez

Member

Mr. Chester Damian

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 that his under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he was discharged from the Army under the provisions of chapter 14 instead of being referred to a Medical Evaluation Board for mental disorders.  Therefore, he requests his discharge be upgraded so that he may be eligible for Army disability benefits and Department of Veterans Affairs (VA) benefits for his mental disorders, which he maintains occurred while he was on active duty.  

3.  The applicant provides copies of Congressional correspondence, application for disability insurance benefits, the Army Discharge Review Board (ADRB) case report, and a letter from the VA.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 31 May 2001.  He was trained in and awarded military occupational specialty 92F (Petroleum Supply Specialist).  

2.  On 25 September 2002, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty on the following dates: 5 September 2002; 4 September 2002; 31 August 2002; 30 August 2002; and 29 August 2002.  His punishment consisted of reduction to the grade of E-2, forfeiture of $619.00 pay for two months, and restriction and extra duty for 45 days.

3.  On 3 December 2002 NJP was imposed against the applicant for on or between 4 August 2002 and 3 September 2002 wrongfully using marijuana, and failing to go to his appointed place of duty on the following dates:  17 September 2002; 11 October 2002; 12 October 2002; 13 October 2002; 14 October 2002;
16 October 2002; 17 October 2002; 19 October 2002; 22 October 2002; 
24 October 2002; and 25 October 2002.  His punishment consisted of reduction to the grade of E-1, forfeiture of $522.00 pay for two months, and restriction and extra duty for 45 days.

4.  On 5 March 2003, the applicant’s company commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, misconduct.  The commander stated that the applicant came to work when it was convenient for him and that he did not work unless directly supervised.  He said that it takes more time to try and find the applicant to come to work than the time the applicant actually spent at work.  The commander stated that it was not feasible or appropriate to consider any other type of disposition in the applicant’s case and recommended that his service be characterized as under other than honorable conditions.  

5.  The company commander’s notification memorandum shows that a report of mental status evaluation or psychiatric report and a report of medical examination were attached.  However, copies of these reports were not contained in the applicant’s Official Military Personnel File (OMPF).

6.  On 5 March 2003, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers if his discharge was characterized as a general under honorable conditions, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

7.  On 5 March 2003, the commander of 4th Infantry Division, Fort Hood, Texas, recommended approval of the discharge action.  He recommended that the applicant’s service be characterized as under other than honorable conditions.

8.  On 9 April 2003, the applicant withdrew his conditional waiver of his rights and submitted an unconditional waiver of his rights to an administrative separation board.  The applicant acknowledged that he had been counseled on the effects of the withdrawal and fully understood that he may receive a discharge with a characterization of other than honorable and lose some or all of the benefits to which he would otherwise be entitled.   

9.  On 24 April 2003 the lieutenant general in command of Headquarters, III Corps and Fort Hood, Fort Hood, Texas, approved the applicant’s request for waiver of an administrative separation board and directed his discharge under the provisions of chapter 14-12c, Army Regulation 635-200.  He stated that the applicant will be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct, with a characterization of service of under other than honorable conditions on 12 May 2003.  The applicant was credited with 1 year, 11 months, and 8 days of active service. 
11.  The applicant provided a copy of his request to the Social Security Administration for disability insurance benefits dated 7 December 2005.  He also provided a copy of a letter from VA explaining what evidence they needed to decide his claim dated 20 March 2006. 

12.  The applicant provided several letters to his Senator requesting his assistance in getting his discharge upgraded to honorable.  The applicant stated that he was wrongly denied mental treatment, counseling and access to a medical review board for his mental health problems, schizophrenia.  

13.  On 16 May 2006, the applicant appealed to the ADRB to upgrade his discharge.  On 26 March 2007, the ADRB denied the applicant’s request for a discharge upgrade stating that the board determined that the applicant’s discharge was both proper and equitable.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Chapter 14-12c states that specific categories of commission of a serious military or civil offense includes abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge certificate is normally appropriate for a member who is discharged for acts and patterns of misconduct.

15.  Paragraph 14-17, of the same regulation, provides actions taken by the separation authority upon receiving a recommendation for separation for misconduct.  The regulation state, in pertinent part, that the approving authority will disapprove the recommendation relating to misconduct  and direct that the case be processed through medical channels if it is determined that the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct.  

16.  Army Regulation 635-200 paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

2.  While the circumstances surrounding the applicant’s medical problems are unfortunate there is no evidence and the applicant has not provided any to show that he was medically unfit at the time of his separation.  Although there were no copies of the applicant’s mental or physical evaluation in his OMPF the notification memorandum indicates that these evaluations were conducted and a part of the applicant’s notification packet.  Additionally, the fact that the lieutenant general approved the applicant’s separation action under the provisions of Army Regulation 635-200, chapter 14, is an indication that he was found mentally and physically qualified for separation.  

3.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BE  ___  __JM ___  __CD___  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.





_____  Barbara Ellis_______
          CHAIRPERSON




INDEX

CASE ID
AR20070010450
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071108
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.