IN THE CASE OF:	

		BOARD DATE:	      23 December 2008

		DOCKET NUMBER:  AR20080015675 


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 that a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) imposed on 29 May 2008 be removed from his Official Military Personnel File (OMPF) and that his rank be restored to sergeant/E-5.

2.  The applicant states, in effect, that he was under the care of a mental health therapist at the time of the incident.  He contends that during the Article 15 proceedings the doctor spoke on his behalf concerning his condition and the treatment he was receiving for severe depression.  He claims that the doctor's testimony was not taken into consideration because the doctor recommended that he receive treatment and not punishment by an Article 15.  He also states that he did not feel an appeal would do any good since his chain of command rendered no support at the time.

3.  The applicant provides memoranda, dated 19 September 2008 and 17 September 2008; two DD Forms 2870 (Authorization for Disclosure of Medical or Dental Information); and numerous medical records.  

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 22 January 2008 in the rank and grade of sergeant/E-5.

2.  A DA Form 2627, dated 29 May 2008, shows that nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 16 April 2008 to 21 April 2008, three specifications of failure to go at the time prescribed to his appointed place of duty, missing movement, and disobeying a lawful order.  His punishment consisted of a reduction to E-4, a forfeiture of $1062.00 pay per month for 2 months (suspended), extra duty for 45 days, and restriction for 45 days.  The issuing commander directed that the original DA Form 2627 be filed in the performance section of the applicant’s OMPF.

3.  A review of the applicant’s OMPF on the Interactive Personnel Electronic Records Management System revealed a copy of the DA Form 2627 in question.

4.  In support of his claim, the applicant provided a memorandum, dated 17 September 2008, from a Behavioral Science Officer for the 5th Brigade, 2nd Infantry Division, at Fort Lewis, Washington.  He states that he counseled the applicant on two occasions (15 May 2008 and 30 May 2008) and that he was present at the applicant's Article 15 hearing.  He stated his concern was that just at the point the applicant sought help for his mental health, he was being given an Article 15.  He was also concerned that a Soldier would not seek help for his mental health because he would be punished for it or it would have a negative impact on his/her career.  He also indicated that he was unfamiliar with the details of the applicant's Article 15 and that shortly after appearing at the Article 15 proceedings the applicant's command informed him that the applicant was being separated and that he needed to conduct a mental status evaluation on the applicant.

5.  The applicant provided a memorandum, dated 19 September 2008, from a trial defense counsel.  She states that the applicant received an Article 15 for being AWOL for four days, that he was seeking psychiatric treatment for severe depression and anxiety at the time, and that he went to the hospital where he was directed to the mental health department and treated.  She states that personnel from the treatment center called the applicant's unit and spoke with his commander and squad leader and explained that he was unable to come to work and that he was receiving treatment.  She further states that 3 weeks after the applicant returned to work he was informed that he would receive an Article 15.  Sworn testimony about the applicant's attempts to receive treatment and the severity of his disorders was presented by the Behavioral Science Officer at the applicant's Article 15 proceedings.  She points out that the applicant has served in the Army for 12 years, that he has never received an Article 15 or any other punishment, that he is a good Soldier who deserves better than to be punished for needing help, and that the only lesson the applicant will learn from the Article 15 is that seeking therapy is a punishable offense.

6.  The applicant also provided medical records, dated 10 April 2008 to 19 June 2008, which show he was diagnosed with major depression and a personality disorder.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 on DA Form 2627).  Allied documents accompanying the Article 15 will be filed in the restricted section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.  The applicant's evidence has not explained how his depression and personality disorder excused his misconduct or rendered him incapable of reporting for duty.  Contrary to defense counsel's assertion, the applicant has not established that it was impossible for him to report for duty.

2.  Although the trial counsel contends that the applicant received an Article 15 for being AWOL for 4 days, evidence of record shows the applicant received an Article 15 for being AWOL for 4 days, three specifications of failure to go at the time prescribed to his appointed place of duty, missing movement, and disobeying a lawful order.

3.  There is no evidence that the DA Form 2627 was improperly imposed.  The DA Form 2627 imposed on 29 May 2008 was properly filed in the applicant’s OMPF.  Therefore, there is no basis for granting the applicant’s requests at this time. 

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)                                         AR20080015675



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ABCMR Record of Proceedings (cont)                                         AR20080015675



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