IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20070016956 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record of punishment, under Article 15, Uniform Code of Military Justice (UCMJ), dated 30 March 2006, be removed from his official military personnel file (OMPF).  

2.  The applicant states, in effect, that he was suffering from a DX (diagnosed) medical condition and against a medical recommendation he was sent to a live fire, M1A2 SEP range (acronym unknown).

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 13 February 2002.  He was trained as an Armor Crewman, in military occupational specialty (MOS) 19K.  He was promoted to SP4/E-4 effective 1 September 2004.  

2.  On 30 March 2006, the applicant was punished under Article 15, of the UCMJ, for disobeying a lawful order from a noncommissioned officer on 7 March 2006.  His punishment consisted of reduction to pay grade E1, a forfeiture of $297.00 (suspended), and 45 days restriction and extra duty. 



3.  Item 5, of his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), directing filing of his NJP on the performance or restricted fiche of his OMPF was lined out and the entry "NA" was entered.

4.  The applicant appealed the punishment imposed.  A legal review indicated that the proceedings were conducted in accordance with law and regulation and that the punishments imposed were neither unjust nor disproportionate to the offense committed.

5.  The applicant's Article 15, under UCMJ, dated 30 March 2006, is listed on the performance section of his OMPF (I-PERMS [Integrated-Personnel Electronic Records Management System]).

6.  On 7 April 2006, a Staff Psychiatrist, Department of Psychiatry/Department of Psychology, DACH (Darnall Army Community Hospital) Counseling Mental Health Clinic, Fort Hood, Texas, prepared a memorandum for the applicant’s commander.  The psychiatrist informed the commander that the applicant was undergoing medical treatment for an anxiety disorder with symptoms consistent with Combat Stress Reaction.  He met two of the three criteria-clusters for PTSD (Post Traumatic Stress Disorder).  He reported dissociative periods and nightmares during which he re-experienced aspects of the trauma.  He also reported autonomic hyperarousal to include irritability, insomnia, hypervigilence and exaggerated startle response to loud noises such as gunfire or explosions.  His condition did not officially meet criteria for PTSD; however, he was not deployable because of the likelihood of his symptoms endangering himself and other Soldiers in a combat situation.  The incident for which he received an Article 15 occurred during combat simulations while in the field.  It was highly probable that symptoms enumerated above lowered his frustration tolerance, thus allowing expression of more primitive behaviors/impulses.  This could certainly include the failure to go to parade rest, or an adversarial "fight or flight" coping style which was not in accord with military bearing.  He was responding to treatment; however the conditions of extra duty sleep deprivation, and interpersonal tension in the work environment were taxing his coping ability.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available record; however, the applicant submitted a copy of his DD Form 214 which shows that on 12 May 2006, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, for a condition, not a disability.  He had completed 4 years and 3 months of creditable service.


8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 covers separation for convenience of the government.  Paragraph 5-1 states that unless the reason for separation required a specific characterization, a Soldier being separated for the convenience of the Government will normally be characterized as honorable, under honorable conditions, or an uncharacterized description if in an entry-level status.  

9.  Paragraph 5-17, of the same regulation pertains to other designated physical or mental conditions.  It states that commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (Army Regulation 635-40) and excluding conditions appropriate for separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to:  (1) chronic airsickness; (2) chronic seasickness; (3) enuresis; (4) sleepwalking; (5) dyslexia; (6) severe nightmares; (7) claustrophobia; and
(8) other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

10.  Army Regulation 600-8-104, in pertinent part, provides the following instructions for the filing of a DA Form 2627 issued on or after 25 January 1990:  the Record of Proceedings under Article 15, UCMJ for Soldiers in the rank of Specialist or Corporal or below will be filed only in local non-judicial punishment files. The DA Form 2627 will not be filed in the MPRJ or the OMPF of these soldiers.

11.  Army Regulation 600-8-104, in pertinent part, provides the following instructions for the filing of case files for approved separations:  Case files for approved separations, including elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service will be filed in the general administrative section of the OMPF.

12.  Paragraph 2-4.a. states that once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by, among other agencies, the Army Board for the Correction of Military Records (ABCMR) or the OMPF custodian when documents have been improperly filed.







DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a record of nonjudicial punishment which was properly filed in his OMPF.  The evidence shows that the applicant 
was processed for separation from the Army under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17.  The record of non-judicial punishment which is on file in the applicant's OMPF was not placed there on its own but was placed there because it was used, in part, as a basis for his discharge.  This document is an intricate part of the discharge "packet" prepared by command and will not be separated.

2.  The evidence shows that the filing options/instructions of the applicant's Article 15 were lined through in item 5 and the entry "NA" was appropriately entered.  Were it not for the fact the Article 15 became a part of his discharge "packet," it would not have been filed in his OMPF at all. 

3.  The evidence also shows that it appears that the DA Form 2627 was appropriately administered.  The applicant appealed the punishment imposed.  Legal review indicated that the proceedings were conducted in accordance with law and regulation and that the punishment imposed was neither unjust nor disproportionate to the offense committed.  

4.  Applicable regulation states that, once a document has been directed for filing in the OMPF, and the applicant's separation packet appears to have been properly filed in accordance with applicable regulations, there are no provisions for its removal from the applicant's OMPF.  Since the separation "packet" was filed in the OMPF in accordance with applicable regulation and it is presumed to be administratively correct, neither the separation "packet" not the Article 15 will be removed from his OMPF.

5.  The applicant claims that he was suffering from a diagnosed medical condition and against that medical recommendation he was sent to a live fire, M1A2 SEP Range.  The evidence shows that as of 7 April 2006, he was undergoing medical treatment for an anxiety disorder with symptoms consistent with Combat Stress Reaction.  There is no indication if he was receiving treatment prior to 7 March 2006 [the date of his violation of the UCMJ] for this 
medical condition.  The applicant failed to provide evidence, and there is none, to show that he was sent to a live fire, M1A2 SEP Range.  He was separated from the Army under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, for a condition, not a disability.



6.  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; therefore, the Article 15s which are on file in the applicant's OMPF will remain filed as enclosures to the applicant's separation "packet" in his OMPF and will not be removed.  The applicant's request is therefore denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  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.




       _   ___x___   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.









ABCMR Record of Proceedings (cont)                                         AR20070016956



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ABCMR Record of Proceedings (cont)                                         AR20070016956



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