IN THE CASE OF:	  

		BOARD DATE:	        28 OCTOBER 2008

		DOCKET NUMBER:  AR20080012574 


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 discharge by reason of misconduct be changed to reflect that he was discharged by reason of physical disability and that the recoupment of his enlistment bonus be forgiven. 

2.  The applicant states, in effect, that the pattern of misconduct that led to his discharge was caused by his illness that was diagnosed by the Army as progressive paranoid schizophrenia.  He goes on to state that he was awaiting a medical evaluation board at the time he was discharged for misconduct; however, he was incompetent at the time and should have continued to be processed for a medical discharge due to being incapable of taking care of himself.  Additionally, because he was incompetent and unable to handle his affairs, the recoupment of his enlistment bonus should be cancelled because he does not have the funds to make such payments.

3.  The applicant provides a two-inch binder containing a 5-page letter from his mother, acting in his behalf; a power of attorney for his mother; a copy of a letter of indebtedness from the Defense Finance and Accounting Service (DFAS), Denver, Colorado in the amount of $3,537.07; a partial copy of his enlistment contract; photographs and transcripts from high school and military training graduations; newspaper articles regarding his graduating from advanced individual training (AIT); a copy of his DD Form 214; a Statement of Military Pay Account, to include his bonus recoupment; a copy of his separation orders; documents from his military and civilian medical records; documents related to his current diagnosis and treatment in civilian facilities; and documents related to his current medications. 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in Pittsburgh, Pennsylvania on 23 August 2005 for a period of 4 years and 16 weeks, training as a field artillery data systems specialist and a $20,000 cash enlistment bonus.  At the time he signed his enlistment contract he acknowledged that his incentive bonus was subject to him remaining qualified in his incentive military occupational specialty for the duration of his initial enlistment.  

2.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Fort Hood, Texas on 3 January 2006, for assignment to a field artillery battery.   

3.  On 30 March 2006, the applicant was referred to mental health officials of the 1st Cavalry Division for complaints of feeling stressed out and not being able to take it anymore.  He was seen by mental heath on at least five occasions before being admitted to the mental health ward at Darnall Army Community Hospital (DACH) on 13 April 2006.  He indicated at the time of his admission that he endorsed auditory hallucinations that have been present since age 5 from a familiar but unrecognizable male voice that comments on his behavior and occasionally commands him to harm himself.  The applicant’s physical and neurological exams were normal with no focal findings.  He was hospitalized for 6 days and experienced multiple incidents of nocturnal enuresis.  He was discharged on 19 April 2006 and his diagnosis was that he suffered from schizophrenia, paranoid type, mild arthritis, and back pain.     

4.  On 18 May 2006, he suffered a head trauma when he fell in a stairwell while intoxicated.  He was consuming alcohol while on prescription medications and was treated at DACH.  

5.  On 30 May 2006, in conjunction with separation processing, the applicant underwent a mental status evaluation by the 1st Cavalry Division Psychiatrist who opined, in effect, that the applicant had the mental capacity to understand and participate in any actions that may be taken against him and that he was mentally responsible.  The psychiatrist also indicated that the applicant had been diagnosed and treated for psychosis since 31 March 2006 and that a Medical Evaluation Board had been initiated for medical separation.  The psychiatrist stated that although diagnosed with a serious psychopathology, the applicant had been non-compliant with care over the past 8 weeks, on two occasions using alcohol with medications despite direct counseling against such behavior.  On 
30 May 2006, against medical advice, the applicant opted to discontinue care with Division Mental Health Services.  Furthermore, the applicant was determined to be mentally responsible for his alleged bad acts; he acknowledged that he knew and appreciated the wrongfulness of his acts at the time of the alleged conduct.  His symptoms were not so severe that they prohibited him from engaging in the Chapter 14 process.  He had the sufficient mental capacity to understand and participate in proceedings against him.  The applicant was assessed not to be at risk of harming himself or others.  Despite this, given his diagnosis and current stressors, it was recommended that he have no access to weapons or ammunition.  The recommendation was also that all security clearances be rescinded; that the applicant be given a direct order not to consume alcohol and that he should be encouraged to reengage mental health services for continuing treatment. 

6.  On 14 June 2006, the applicant's commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  He cited the applicant's pattern of negative behavior and actions, failure to obey lawful orders and his failure to go to his appointed place of duty as the basis for his recommendation.

7.  On 15 June 2006, after consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  On 19 June 2006, the appropriate authority approved the recommendation for discharge and directed that the applicant be discharged under honorable conditions.

9.  Accordingly, he was discharged under honorable conditions on 23 June 2006, under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct.  He had served 10 months and 1 day of total active service.

10.  On 12 May 2008, in response to a letter written by the applicant's mother, the DFAS informed the applicant that his debt was valid in the amount of $3,537.07 for the unearned portion of his Selective Enlistment Bonus (SEB), of which the applicant had already received $10,000.00.  DFAS also advised the applicant that his account had been turned over to a collection service and that he could apply to this Board if he believed an error or injustice had occurred in regards to his bonus recoupment.

11.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation provides, in pertinent part, that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

13.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, also provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating. 

14.  Army Regulation 635-200, paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states, in pertinent that a soldier may be separated for personality disorders that interfere 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.  Separation because of personality disorder is not appropriate when separation is warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14 or 15; AR604-10 or AR635-40.  Commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious acts of misconduct for which harsher penalties may be imposed. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant was cleared by the Division Psychiatrist to participate in separation proceedings and he was diagnosed as being mentally responsible and able to distinguish right from wrong and to adhere to the right.  Accordingly, the commander properly initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, due to his pattern of misconduct.

4.  In regards to the applicant's contention that the recoupment of his unearned enlistment bonus should be forgiven, the evidence of record shows that his contract clearly notified him that his incentive bonus was subject to him remaining qualified in his incentive military occupational specialty for the duration of his initial enlistment.  He was paid $10,000 of a $20,000 total bonus entitlement and only served 10 months and 1 day of his contract.  Accordingly, it appears that his debt is valid and that he has received undue enrichment to which he has not earned and therefore should be required to repay the debt.  

5.  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 the aforementioned requirement.
 
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.




      _______ _  XXX_____   ___
               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)                                         AR20080012574



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ABCMR Record of Proceedings (cont)                                         AR20080012574



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