IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20090000368 


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 his general discharge be changed to a medical discharge.

2.  The applicant states that he was professionally diagnosed with a medical disorder that would have inhibited his ability to effectively serve his purpose as an airborne infantry Soldier.  However, his commanding officer decided to discharge him unjustly.  He goes on to state that he was never given punishment under Article 15 and he never lost any rank.  He continues by stating that his commander told him that he did not like him and that he was going to do anything in his power to make life difficult for him after his discharge.  He further states that the commander completely ignored the advice given by the brigade psychiatrist and believes that he was unjustly treated by his commander.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 September 1982 and enlisted in the Regular Army with a moral waiver for theft, aggravated battery, aggravated assault, resisting a peace officer, and unlawful consumption of alcohol on 8 March 2006, for a period of 6 years and 19 weeks; training as an airborne infantryman; and a cash enlistment bonus of $37,000.  He completed his required training at Fort Benning, Georgia and was transferred to an airborne infantry company in Italy.

2.  On 23 November and 3 December 2006, the applicant was arrested by military police officials for domestic violence against his wife (Assault consummated by battery).

3.  On 11 December 2006, the applicant underwent a mental status evaluation at the brigade mental health service.  The examining psychologist diagnosed the applicant as having a personality disorder not otherwise specified and adjustment disorder with anxiety.  He opined that the applicant was mentally responsible and that he met retention standards; however, he recommended that the applicant be administratively discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-13 (personality disorder) because the applicant manifests a        long-standing disorder of character, behavior and adaptability that is of such severity as to preclude further military service.  Additionally, he was to have no access to alcohol, weapons, or airborne operations.

4.  The applicant was also counseled by his squad leader on 11 December 2006, who indicated that after he (the applicant) received his summarized Article 15, he did not comply with the 90-day probationary period because he failed to refrain from the consumption of alcohol and he again assaulted his wife.  The squad leader also counseled the applicant on his unsatisfactory performance and advised the applicant that he could be subject to administrative separation from the service.

5.  On 19 December 2006, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12 b, for a pattern of misconduct that consisted of two domestic violence incidents.

6.  After consulting with counsel, the applicant waived all of his rights and declined to submit matters in his own behalf.

7.  On 8 January 2007, the appropriate authority approved the recommendation for separation and directed that the applicant receive a general discharge.

8.  Accordingly, the applicant was discharged under honorable conditions on 17 January 2007, under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct.  He had served 10 months and 10 days of total active service.


9.  Army Regulation 635-200, paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states, in pertinent part, that a Soldier may be separated for personality disorders that interfere with assignment to or 
performance of duty.  Separation for personality disorder is not appropriate when separation is warranted under another chapter of this regulation or under Army Regulation 604-10 (Military Personnel Security Program) or Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  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.

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  

13.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, states that a personality disorder renders an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

2.  The applicant's contentions have been noted; however, he has failed to show through the evidence submitted and the evidence of record that separation through medical channels was warranted at the time of separation, that he was not found fit for separation, or that a medical condition was the cause of his misconduct.  To the contrary, he was diagnosed with a personality disorder.  The governing regulations states that this disorder will be dealt with through administrative channels

3.  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

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)                                         AR20090000368



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ABCMR Record of Proceedings (cont)                                         AR20090000368



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