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ARMY | BCMR | CY2008 | 20080019423
Original file (20080019423.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	        31 MARCH 2009

		DOCKET NUMBER:  AR20080019423 


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, with his mother acting as his power of attorney, request, in effect, that his uncharacterized discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions) be changed to an honorable discharge, and that his narrative reason for separation be corrected to read "Recruiter Impropriety."   

2.  The applicant and his mother essentially state that the applicant should never have been accepted into the Army due to his mental health history, but that his recruiter hid his medical history and advised him not to speak about it.  They also contend that the applicant's recruiter was found guilty of recruiting impropriety in September 2007 for concealing medical records.

3.  The applicant and his mother provide a three-page power of attorney, the first page of a memorandum, dated 5 October 2006, which was part of his separation proceedings, a memorandum, dated 28 August 2007, regarding a Report of Investigation on his recruiter, and a redacted memorandum, dated 25 September 2007, in which the Commanding General, United States Army Recruiting Command substantiated the case of recruiting impropriety on his recruiter in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 17 August 2006.  As part of his enlistment processing, the applicant completed a DD Form 2807-1 (Report of Medical History).  This document contained the following warning:  "The information you have given constitutes an official statement.  Federal law provides severe penalties (up to 5 years confinement or a $10,000.00 fine or both) to anyone making a false statement.  If you are selected for enlistment, commission, or entrance into a commissioning program based on a false statement, you can be tried by military courts-martial or meet an administrative separation board for discharge and could receive a less than honorable discharge that would affect your future."  The applicant checked "No" to indicate that he had not been evaluated or treated for a mental condition, that he had no depression or excessive worry, and that he had no nervous trouble of any sort.  He authenticated this document with his signature on 3 August 2006.

2.  Also on 3 August 2006, the applicant completed a Standard Form 86 (Security Clearance Application).  In item 19 (Your Medical Record), the applicant indicated that in the last 7 years, he had not consulted a mental health professional (psychiatrist, psychologist, counselor, etc.) and had not consulted with another health care provider about a mental health related condition.  The applicant certified this document with his signature, and acknowledged that he understood that a knowing and willful false statement on this form could be punished by fine or imprisonment or both under Section 1001, Title 18, United States Code.

3.  On 27 September 2006, a mental status evaluation was conducted on the applicant, and the Medical Command (MEDCOM) Form 699-R (Report of Mental Status Evaluation) shows that he was diagnosed with bipolar disorder that would preclude him from further military service.  The applicant was considered to have the mental capacity to understand and participate in proceedings and was mentally responsible.  It was also recommended that he be expeditiously separated from the service in accordance with paragraph 5-17, Army Regulation 635-200.

4.  On 5 October 2006, the applicant's commanding officer informed him that he was initiating action to separate him under the provisions of paragraph 5-17, Army Regulation 635-200.  The reasons for his proposed action were him being diagnosed with Axis I condition of bipolar disorder, and that his behavioral and emotional problems rendered him incapable of successfully coping with the emotional stress of military training.  The applicant was also advised of his rights.

5.  On 17 October 2006, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17 due to a physical or mental condition and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf, and appears to have waived counsel.
  
6.  On 24 October 2006, the proper separation authority approved the applicant's separation under the provisions of paragraph 5-17, Army Regulation 635-200, and directed that he receive an entry level separation or, in other words, an uncharacterized discharge.  On 26 October 2006, the applicant was discharged accordingly after completing only 2 months and 10 days of active duty service.  

7.  The applicant provided a redacted memorandum, dated 25 September 2007, in which the Commanding General, United States Army Recruiting Command substantiated the case of recruiting impropriety on the applicant's recruiter because the preponderance of the evidence established that he committed a recruiting impropriety by concealing the applicant's existing medical conditions.

8.  The applicant's separation file contained a letter, dated 25 August 2006, from the applicant's mother, who stated in pertinent part, that the applicant began seeing a psychologist at age 12 and a psychiatrist at age 13.

9.  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 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Entry level status is defined as the first 180 days of continuous active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, with his mother acting as his power of attorney, contend that his uncharacterized discharge under the provisions of Army Regulation 635-200, paragraph 5-17 should be changed to an honorable discharge and that his narrative reason for separation should be corrected to read "Recruiter Impropriety."   

2.  The fact that the applicant's recruiter committed a recruiting impropriety by concealing the applicant's existing medical conditions was noted, as was the applicant and his mother's contention that his recruiter advised him not to speak about his medical conditions.  However, notwithstanding the applicant's recruiter's improprieties, it was the applicant and the applicant alone who signed false statements regarding his medical condition in his DD Form 2807-1 and Standard Form 86, both acts which by law are punishable with imprisonment, fines, or both.  Additionally, these false statements also essentially violated Article 83 (Fraudulent Enlistment, Appointment, or Separation) of the Uniform Code of Military Justice, as he received pay and allowances after entering active duty due to his false statements, which was an offense punishable by dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

3.  The applicant's and his mother's contention that he should never have been accepted into the Army due to his mental health history was noted, and the evidence proves that their contention is correct.  However, the applicant is equally complicit in his fraudulent entry in that he made false statements which in part permitted his entry onto active duty.

4.  The evidence of record clearly shows that the applicant was discharged under the provisions of paragraph 5-17, Army Regulation 635-200 for his bipolar disorder which he failed to disclose at the time of his enlistment processing.  As he only had 2 months and 10 days of active military service, he was in an entry level status at the time of his discharge.  As a result, his service was properly characterized as uncharacterized.  

5.  Additionally, while it is clear that recruiter impropriety played a role in his enlistment, recruiter impropriety is not an authorized narrative reason for separation.  As a result, there is no basis for correcting the applicant's narrative reason for separation on his DD Form 214.

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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20080019423



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ABCMR Record of Proceedings (cont)                                         AR20080019423



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