IN THE CASE OF:	  

		BOARD DATE:	        6 August 2009

		DOCKET NUMBER:   AR20090011408 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's request, dated 18 November 2006, for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his characterization of service from general, under honorable conditions to honorable; to change the authority for his separation to medical; to change his separation program designator (SPD) code to MBK; to change his reentry (RE) code to 1 or 1A; and to change his narrative reason for separation to erroneous enlistment/reenlistment, medical reasons, or [for the] good of [the] service.  Counsel asks that this request for reconsideration be considered as having been timely filed.   

2.  Counsel states that the applicant submitted through his counsel a DD Form 149 (Application for Correction of Military Record Under the Provisions of Tile 10, U.S. Code, section 1552) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).  When submitted, the DD Form 149 included the decision memorandum from the Commander, III Corps, Fort Hood, TX; a DD Form 458 (Charge Sheet) and forwarding endorsements; the applicant's request for a discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel); and his statement in support of his request for discharge with 31 


enclosures.  The Support Division [Army Review Boards Agency (ARBA)] acknowledged receipt of the DD Form 293 on 12 December 2003.  

3.  On 10 June 2004, the Army Discharge Review Board (ADRB) informed the applicant that his discharge would be upgraded to under honorable conditions.  On 9 April 2009, counsel for the applicant was aware that the 6-year statute of limitations for the U.S. Court of Federal Claims was approaching and wrote to the ARBA Support Division.  On 22 April 2009, counsel for the applicant received a letter, dated 16 April 2009, informing him that the Board decision was made and dated 19 July 2007, and a copy of the decision was provided.

4.  Counsel contends that the 2007 Board decision contains the following errors:

	a.  that the cover letter contains an incorrect address for the applicant;

	b.  that page three of the proceedings states the applicant's DD Form 149 is dated 18 November 2006, when in fact it was dated 26 June 2003;

	c.  that page four of the proceedings states the applicant was conditionally released from the U.S. Marine Corps (USMC) when it is obvious to even the casual observer that the signature of the Army recruiter was used for both the Army and the Marine Corps;

	d.  that page four also states the applicant's "complete separation packet is not contained in the available records," so how did the Board know the issues?;

	e.  that page four further states the applicant only had an ankle scar which the Department of Veterans Affairs (VA) rated at zero percent disabling; 

	f.  that page five of the Board proceedings states the applicant failed to provide any evidence to support his contention that he received medical treatment within 2 months of his enlistment in the U.S. Army; and

	g.  that page 6 of the Board proceedings justifies an out of time application when it is clear that the application was in the custody of ARBA in a timely manner.

5.  Counsel also states that the applicant was recalled to active duty by the USMC on 13 February 2003, even though he was supposedly released from the USMC  on 7 March 2002.  Counsel states that the applicant was prescribed a cane on 10 February 2003 and he was charged with missing movement on 
19 March 2003 when he had a temporary (T3) physical profile.

6.  Lastly, counsel states that he has filed [on behalf of the applicant] a complaint with the U.S. Court of Federal Claims.  Counsel anticipates filing a motion to stay the claims court action when the United States has filed its answer to the complaint.  In that complaint, counsel contends that the U.S. Army did not have jurisdiction over the applicant based on his enlistment being erroneous.

7.  Counsel provides, in support of this request for reconsideration, copies of the applicant's DD Form 149, dated 27 June 2003, including a copy of a DD Form 458; his memorandum Request for Discharge in Lieu of Trial by Court-Martial; his DD Form 214 from the USMC for the period ending 17 August 2001; his DD Form 4 (Enlistment/Reenlistment Document) for the period beginning 7 March 2002; a Western Union Mailgram, dated 13 February 2003; a VA Disability Letter, dated 25 October 2001; a VA notification of voided check, undated; a Police Department Service Report for suicide, subject not identified; a DA Form 4187 (Personnel Action) Report of AWOL (absent without leave) as of 18 March 2003, dated 21 March 2003; a DA Form 4187, Report of Hospitalization on 19 March 2003, dated 21 March 2003; a DA Form 5181 (Screening Note of Acute Medical Care) dated 2 May 2002; two DA Forms 3349 (Physical Profile), dated
4 September 2002 and 19 February 2003; medical treatment records, dated
2 December 2002, 6 January 2003, 29 January 2003, 10 February 2003,
19 February 2003, 6 March 2003, and 19 March 2003; a DD Form 2707 (Confinement Order), dated 24 March 2003; a Report of Magnetic Resonance Imaging (MRI), dated 1 April 2003; a medical referral for suicide, dated 3 April 2003; a Standard Form (SF) 600-E (Chronological Record of Medical Care), dated 17 April 2003; a Summary of Prescribed Medications for 20 August 2002 through 6 March 2003; a Psychiatric Evaluation, dated 20 March 2003; a Narrative Summary [of hospital admission from 19 to 24 March 2003]; a statement by the applicant, dated 24 February 2003; a self-authored statement, dated 24 February 2003, a statement by his mother, dated 23 March 2003; counsel's letter, dated 9 April 2009; and an ADRB letter to the applicant, dated 10 June 2004, with ADRB's proceedings and enclosures.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060016430, on 12 July 2007.

2.  In 2003, the applicant, through his counsel, submitted both a DD Form 149 and a DD Form 293, requesting essentially the same relief as now requested in this case.   

3.  On 10 June 2004, the ADRB informed the applicant by letter that it had reviewed his DD Form 293 and determined that relief was warranted.  The ADRB upgraded the applicant's characterization of service from under other than honorable conditions to under honorable conditions, but did not change the narrative reason for separation or RE Code associated with his separation.  The ADRB also informed the applicant that his DD Form 149 had been forwarded to this Board for action.  There is no record of this Board having taken any action on the applicant's DD Form 149, dated 27 June 2003.  

4.  On 18 November 2006, the applicant submitted another DD Form 149 [not through any counsel] requesting essentially the same relief as requested in this case.  The applicant provided his conditional release from the USMC, DD Form 214 from the USMC, DD Form 214 from the U.S. Army showing his characterization of service as under honorable conditions; DD Form 214 that was voided; letter from the ADRB, dated 11 August 2004; letter from the VA, dated 
25 October 2001; extracts of Army Regulation 635-200, chapters 5 and 7; a Western Union Mailgram, dated 13 February 2003; and a statement dated
20 November 2006.

5.  The Board considered all of the available evidence and determined: 

   a.  that the applicant had provided a properly constituted Request for Conditional Release from the USMC;
   
   b.  that the applicant underwent a medical examination on 27 September 2001 and was found physically qualified for enlistment;
   
   c.  that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge;
   
   d.  that the applicant had requested an administrative discharge in lieu of trial by court-martial and that it was approved; and
   
   e.  that the Board could find no basis for granting any change to the applicant's separation authority, SPD code, RE code, or narrative reason for separation, as shown on his DD Form 214 for the period ending 
16 May 2003, as previously changed by the ADRB.

6.  The medical documentation provided by counsel constitutes new evidence and should be considered by the Board.


7.  On 12 July 1996, the applicant underwent a physical examination for enlistment in the USMC.  The report of that physical examination makes no mention of any injuries or other disqualifying physical conditions.  He was found fully qualified for enlistment in the USMC.

8.  The evidence of USMC records show that the applicant enlisted in the USMC Reserve on 12 July 1996 for 8 years. On 18 November 1996, he enlisted in the Regular component of the USMC for 4 years.

9.  The applicant's service medical records for the period of his service in the USMC, to include his separation physical examination, are not available for review.

10.  The applicant's DD Form 214 for the period ending 17 August 2001 shows that the applicant was honorably released from active duty from the USMC in the rank of sergeant/E-5 and he transferred to the USMC Reserve.  The narrative reason for his separation was due to completion of required service.  His RE code was RE-1, indicating that he was fully eligible for reenlistment without any waivers.

11.  The VA disability letter, dated 25 October 2001, states that the VA awarded the applicant service-connected disability benefits based on an ankle scar and injury that occurred during his service with the USMC.

12.  A DD Form 368 (Request for Conditional Release) was initiated by the applicant's Army recruiter on 6 November 2001.  The USMC Chronological Record shows that he was honorably discharged from the USMC Reserve on 
6 March 2002.

13.  On 7 March 2002, the applicant enlisted in the Regular Army (RA) for
5 years beginning in the rank/grade of specialist (SPC)/E-4.  He completed advanced individual training (AIT) and he was awarded military occupational specialty (MOS) 31B (Military Police).  

14.  The applicant's entrance physical examination is not available for review.  The service medical records that are available show:

	a.  2 May 2002:  Complaint of left knee, leg, and ankle pain for 5 days while still in AIT.  The physician noted tenderness of lower calf and prescribed Motrin, stretching exercises three times each day, and no running, jumping or marching for 5 days.

	
   b.   4 September 2002:  The applicant was issued a temporary physical profile with an expiration date of 15 October 2002.  It essentially restricted the applicant's physical activities to walking or running at his own pace, not wearing a backpack, and no marching.

	c.  2 December 2002:  Complaint of ankle pain.  The physician prescribed Motrin and no running, jumping, or marching for 3 days.
	
   d.  6 January 2003:  Complaint of ankle pain.  A hospital follow-up scheduled.

	e.  29 January 2003:  The applicant's temporary profile extended to
28 February 2003.

	f.  10 February 2003:  Complaint of lower back pain for 3 days.  The applicant stated he injured his back while moving a trailer.  He also stated that his left ankle hurt when walking.  He was diagnosed with a back spasm and prescribed pain medication, a cane for use when walking, and no heavy lifting for 5 days.

	g.  19 February 2003:  Medical assessment for deployability regarding chronic ankle pain and acute lumbar strain.  The applicant was cleared for deployment with an air cast on his ankle and a 30-day temporary profile permitting him to walk at his own pace, wear a helmet, carry and fire his rifle, perform duties such as mopping or mowing grass, and marching up to a half mile. 

15.  A Western Union Mailgram, dated 13 February 2003, from the USMC ordered the applicant to active duty in support of Operation Enduring Freedom.  He was given a report date of 3 April 2003.

16.  On 27 February 2003, the applicant underwent a medical examination at the Scott and White Emergency Department for a complaint of low back pain and left ankle pain.  The examination revealed tenderness to his lower lumbar region.  He had a negative straight leg raise, his quadriceps strength was 5/5, and he was able to stand on his toes without difficulty.  He had normal extensor halluces strength, his distal sensation was normal, and he had mild swelling laterally.  He had no posterior malleolar tenderness, he had no lateral foot tenderness, and he had no proximal fibular tenderness.  He was treated with anti-inflammatory medication and was to follow up with his Army doctor for further care and evaluation.  

17.  On 6 March 2003, the applicant was examined at the battalion aid station.  He was prescribed pain medication for his ankle and back pain and restricted from lifting more than 10 pounds or performing physical training for 10 days.   

18.  A DA Form 4187 changed the applicant's duty status from present for duty to AWOL, effective 18 March 2003.  A subsequent DA Form 4187 further changed the applicant's duty status from AWOL to hospital, effective 19 March 2003. 

19.  A medical record report, dated 24 March 2003, shows that the applicant was admitted to the Metroplex Live Hospital on 19 March 2003 due to suicide ideation and medicated with vicodin.  It appeared that the applicant came to the inpatient unit expecting that his psychiatric hospitalization would prevent him from receiving his punishment for going AWOL.  He became very antagonistic with the staff after being told that he would still be held accountable for his actions.  When he was informed that his unit planned to place him in pretrial confinement until his court-martial, he asked for a recommendation to keep him from going to jail.  During his stay, he underwent a psychiatric evaluation.  The applicant was found to have a moderate psychomotor retardation.  His rate and tone of speech was decreased.  His eye contact was reduced and his mood was depressed.  His thought content was significant for suicidal ideation.  He had no homicidal ideation or auditory or visual hallucinations.  His thought processes were logical and coherent; however, his insight and judgment were poor.  The applicant attributed his depressive symptoms to interpersonal conflicts he had with his first sergeant.  He was not found to have been suffering from a bona fide psychiatric illness.  It was possible that he did not want to deploy because of his back pain; however, he did not meet the criteria for inpatient psychiatric hospitalization.  He participated in individual and group therapy.  He was stable at the time of his discharge and agreed to continue his psychiatric care on an outpatient basis.  He was diagnosed with an adjustment disorder, acute, resolved.       

20.  On 24 March 2003, the applicant was placed in pre-trial confinement.  On
25 March 2003, he was given a medical examination and found fit for confinement.  The examiner certified that confinement would not produce serious injury to the applicant's health.

21.  On 28 March 2003, charges were preferred under the UCMJ for violation of Article 85 (Desertion) to avoid hazardous duty in Kuwait by quitting his unit and remaining absent until apprehended on or about 19 March 2003 and for violation of Article 87 (Missing Movement) on or about 19 March 2003. 

22.  On 1 April 2003, the applicant underwent an open MRI of his lumbosacral spine.  The MRI showed that he suffered from degenerative disk disease changes and had a broad-based focal central area of disk protrusion.  

23.  On 2 May 2003, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible 
punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 

24.  In his request for discharge, the applicant stated that he was guilty of at least one of the charges against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

25.  On 2 May 2003, the applicant's counsel submitted a statement in support of the applicant's request for discharge in lieu of court-martial.  Counsel argued:

	a.  that the applicant requested to be discharged with an under honorable conditions characterization of service;

	b.  that the Army lacked jurisdiction over him due to an erroneous enlistment;

	c.  that the applicant did not meet procurement medical fitness standards;

	d.  that the applicant was not guilty of desertion but rather an absence without authority;

	e.  that the applicant had a long history of medical issues while in the Army and should have been referred to a medical board;

	f.  that the applicant became despondent and confused on the day before his deployment;

	g.  that the applicant was admitted to the psychiatric unit and diagnosed with a mood disorder; and

	h.  that the applicant should be released from pre-trial confinement and discharged under honorable conditions. 

26.  On 7 May 2003, the separation authority conditionally approved the applicant’s request for discharge providing that he refrained from any further 
misconduct .  The separation authority dismissed the charges, reduced him to pay grade E-1, directed that he receive an under other than honorable conditions discharge, and that he be separated no later than 10 days from the date of his decision.  

27.  On 16 May 2003, the applicant was discharged accordingly.  He had completed a total of 1 year, 2 months, and 9 days of creditable active duty service in the U.S. Army and he had accrued 1 day of time lost due to AWOL.

28.  On 7 June 2004, the ADRB reviewed the applicant's discharge and determined the characterization was inequitable and that relief was warranted.  The ADRB upgraded his characterization of service to under honorable conditions.   The ADRB further determined that the reason for discharge was proper and equitable and that the RE code was properly assigned.  

29.  Army Regulation 635-200, paragraph 7-15(a) provides that a Soldier may be separated on the basis of an erroneous enlistment.  An enlistment is erroneous if all of the following apply:

	a.  it would not have occurred if the relevant facts had been known by the Government or had appropriate directives been followed;

	b.  it was not the result of fraudulent conduct on the part of the Soldier; and

	c.  the defect is unchanged in material respects. 

30.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

31.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for desertion with intent to avoid hazardous duty, is a dishonorable discharge and confinement for 5 years.  The maximum punishment for missing movement through design is a dishonorable discharge and confinement for 2 years.

32.  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.
33.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides, in pertinent part, that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  

34.  Article 2(c), UCMJ, codifies the theory of "constructive enlistment" and provides, notwithstanding any other provision of law, that a person serving with an armed forces who submitted voluntarily to military authority [the applicant did];
met the minimal competence and age limitations of Title 10, U.S. Code 504 and 505 at the time of voluntary submission to military authority [the applicant did]; received military pay and allowances [the applicant did]; and performed military duties [the applicant did] is subject to the UCMJ until that service is terminated. 

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the applicant's characterization of service should be changed to honorable; that the authority for his separation should be changed to medical; that his separation program designator (SPD) code should be changed to MBK; that his reentry (RE) code should be changed to 1 or 1A; and that the narrative reason for the applicant's separation should be changed to erroneous enlistment/reenlistment, medical reasons, or [for the] good of [the] service.

2.  Counsel further contends that the cover letter to the subject Board proceedings was incorrectly addressed.  Counsel states that the applicant lived in New York, but the proceedings were mailed to New Mexico.   Counsel's contention would be true if the issue was with the 2003 submission by the applicant.  However, it appears that the 2003 case was never acted upon by this Board.  The case that is under review is the applicant's application, dated
18 November 2006, wherein he provided his address as Silver City, New Mexico.  Notwithstanding counsel's confusion and the lateness of the request for reconsideration, the Board will now consider the new evidence and additional arguments.

3.  Counsel argues, in effect, that the applicant was not eligible to enlist in the U.S. Army on 7 March 2002 because he was still a member of the USMC Reserve.  The evidence clearly shows that a properly constituted Request for 
Conditional Release was initiated on 6 November 2001.  Furthermore, the USMC chronological record shows that he was discharged from the USMC Reserve, effective 6 March 2002.  Therefore, he was eligible for enlistment into the U.S. Army.  No evidence has been produced showing that the applicant's enlistment on 7 March 2002 was erroneous.  Even if the USMC's failure to complete block II of the conditional release was a fatal defect in the applicant's enlistment, that basis for a discharge under the provisions of Army Regulation 635-200, 
chapter 7, ceased when the USMC discharged the applicant on 6 March 2002, the day prior to his enlistment in the U.S. Army.  This was a material change to the alleged defect that eliminated an erroneous enlistment as a basis for discharge. 

4.  Counsel further argues that the USMC recall of the applicant on 13 February 2003 is evidence that the applicant had not been discharged from the USMC Reserve.  Counsel's argument is not accepted.  The recall appears to be nothing more than the result of poor record keeping on the part of the USMC.

5.  Counsel's claim that the Army lacked jurisdiction over the applicant because of an erroneous enlistment similarly lacks merit.  Even if the applicant's enlistment had been fraudulent, he still met all of the provisions for "constructive enlistment."  Therefore, the applicant's command legally preferred court-martial charges.  The command authority who had discretion for disposing of those charges appropriately accepted the applicant's request for discharge in lieu of court-martial.

6.  Counsel contends that since the applicant's complete discharge was not available for the Board to review, it could not know the issues.  While the complete discharge packet may not have been available for review by the original Board, it is available for this reconsideration.  

7.  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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

8.  The medical evidence submitted by the applicant's counsel clearly shows that he suffered from back and ankle pain essentially during his entire time while in the U.S. Army.  However, the applicant was medically cleared for deployment.

9.  The evidence clearly shows that the applicant was AWOL on the day of his unit's movement resulting in his missing that movement.  Furthermore, the applicant admitted to this misconduct in his request for discharge.

10.  The applicant's psychiatric evaluation determined that he suffered from an acute adjustment disorder that was resolved.  He was not found to have been suffering from any bona fide psychiatric illness.  

11.  The evidence does not conclusively show that the applicant's medical condition was the reason for his being AWOL and missing movement.  

12.  The applicant's misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to any further upgrade of his discharge.

13.  In view of the above, the applicant's request for upgrade of his discharge to honorable should be denied.

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 AR20060016430, dated 12 July 2007.



      _________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)                                         AR20090011408



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ABCMR Record of Proceedings (cont)                                         AR20090011408



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