IN THE CASE OF:	  

		BOARD DATE:	25 August 2009  

		DOCKET NUMBER:  AR20090003749 


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 reconsideration of the Army Board for Correction of Military Records' (ABCMR) denial of his request to have his rank restored to pay grade E-4.  

2.  He requests that his DA Form 2173 (Statement of Medical Examination and Duty Status) be correctly processed in accordance with Army regulations.  

3.  He requests the period he served in the U.S. Army Reserve (USAR) be shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 April 2004.

4.  The applicant states the DA Form 2173 documenting his closed head injury was not processed correctly and within the time constraints required.  He states the injury was not due to willful misconduct and was incurred in the line of duty.  He states the mishandled DA Form 2173 led to his erroneous discharge and his reduction in rank.  He states his medical conditions led to his receiving a general discharge due to patterns of misconduct that was later upgraded to an honorable discharge by the Army Discharge Review Board (ADRB).

5.  The applicant provides, in support of his application, copies of his 
DD Form 214 with a separation date of 29 April 2004; his certificate for the Army Good Conduct Medal; his incomplete DA Form 2173; Progress Notes from a 


clinical neuropsychologist from 19 December 2008 to 20 February 2009; results of an initial examination and evaluation, dated 23 January 2009, from a chiropractor; his DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes); three certificates of achievement; five Developmental Counseling Forms; and ADRB Docket Number AR20050007452, dated 26 January 2006.

CONSIDERATION OF EVIDENCE:

1.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available.  The final determination of line of duty in the applicant's case has not been made.  The DA Form 2173 must be returned to the unit commander for completion, who then forwards the form to the appointing authority for review, and finally to the final approval authority before a finding can be final.  There is no evidence this process has been completed.  Should the applicant's case not be resolved to his satisfaction he can then resubmit his application to the ABCMR with evidence of denial of his request for administrative correction of his records.  In view of the proceeding, this issue will not be discussed further in these Proceedings.

2.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080008041, on 7 August 2008.

3.  The applicant submitted Progress Notes from a clinical neuropsychologist from 19 December 2008 to 20 February 2009 and results of an initial examination and evaluation from a chiropractor, dated 23 January 2009.  These documents are new evidence which requires that his case be reconsidered by the ABCMR.

4.  On 27 April 1998, the applicant enlisted in the USAR for a period of 8 years.  On 21 July 2000, he submitted a request to enlist in the Regular Army (RA).  His request was approved on 15 August 2000.

5.  On 20 September 2000, the applicant enlisted in the RA for a period of
4 years.  At the time of his enlistment he had completed 2 years, 4 months, and 23 days of service in the USAR.



6.  On 16 March 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful 
order from a superior commissioned officer; for violating a lawful general 
regulation; for forging the initials of a noncommissioned officer with the intent to deceive; for five specifications of failure to go at the time prescribed to his appointed place of duty; and for two specifications of communicating a threat to kill two Soldiers.  He did not demand trial by court-martial and his punishment consisted of a reduction to pay grade E-2, a forfeiture of pay (suspended for 2 months), and restriction.  He did not appeal the punishment.

7.  On 29 April 2004, the applicant was discharged with a general, under honorable conditions discharge due to a pattern of misconduct.

8.  On 7 August 2008, the ADRB upgraded the applicant's discharge to an honorable discharge and changed the narrative reason for separation to Secretarial Authority.  The action by the ADRB was due to the improper approval authority having approved his discharge.  The applicant was issued a new
DD Form 214.  Item 12e (Total Prior Inactive Service) contains the entry 
"02 04 23" (2 years, 4 months, and 23 days).

9.  The Progress Notes from a clinical neuropsychologist and the results of an initial examination and evaluation from a chiropractor document the applicant's current mental and physical condition for low back pain and sciatica, over 4 years after his discharge.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

11.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states 


the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It also establishes standardized policy for the preparation of the DD Form 214.  It states that for block 12e (Total Prior Inactive Service), from previously issued DD forms 214 and/or ERB [Enlisted Record Brief]/ORB [Officer Record Brief], enter the total amount of prior inactive service, less lost time, if any.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his medical condition led to his reduction in grade.  However, the medical progress notes, opinions, and examinations submitted by the applicant were conducted over 4 years after the applicant's discharge and make no indication that these conditions were the cause of his misconduct.

2.  The applicant's NJP was imposed in compliance with applicable laws, regulations, and policies by a command empowered to do so.  The punishment was not disproportionate to the offenses and there is no evidence of any violation of his rights.  

3.  In view of the above, there is no basis to restore the applicant's rank/grade to specialist (SPC)/E-4.

4.  The applicant contends his USAR time is not on his DD Form 214.  He served 
2 years, 4 months, and 23 days in the USAR.  This time is appropriately accounted for in Item 12e which contains the entry "02 04 23."  Therefore, there is no error to correct on this issue.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080008041, dated 7 August 2008.



      __________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)                                         AR20080008041



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ABCMR Record of Proceedings (cont)                                         AR20090003749



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