BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100008549
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 upgrade of his general discharge to an honorable discharge.
2. The applicant states that his discharge should be upgraded for the following reasons:
* Mental state impaired his ability to serve
* Did not receive medical attention required to continue serving
* Only received one Article 15 for going AWOL
* Found not guilty of AWOL
* Had combat service
* Awards and decorations
* Record of promotion shows he was a great service member
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge for Active Duty) and a copy of his Department of Veterans Affairs' Rating Decision in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army (RA) on 20 September 2006.
2. Section III (Service Data) of the applicant's Enlisted Record Brief shows the following record of promotions:
* Private (E-2) - 20 March 2007
* Private First Class (E-3) - 20 September 2007
* Specialist (E-4) - 1 April 2008
* Private (E-1) - 17 June 2009
3. Section I (Assignment Information) of his Enlisted Record Brief shows he served in Iraq from 8 May 2007 through 28 February 2008.
4. The applicants military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment on 17 June 2009 for being absent without leave (AWOL) from 13 August 2008 to 18 May 2009. His punishment included reduction to the rank grade of private (PVT)/E-1 and extra duty for
45 days.
5. On 28 May 2009, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, commission of a serious offense, with an under other than honorable conditions discharge. The specific reason for the applicants elimination recommendation was for being AWOL from 13 August 2008 to 18 May 2009.
6. On the same date the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel. He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights. Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf.
7. On 29 May 2009, the applicant underwent a mental status evaluation wherein he stated he briefly sought mental health treatment in August 2008. He presented with an unremarkable mental status evaluation, denied suicidal and homicidal ideations. The military physician stated that there was no evidence of any psychotic process and combat was not a contributing factor. He was psychologically cleared for administrative separation.
8. The approval authority's action is not available; however, on 29 June 2009 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct serious offense, with an under honorable conditions (general) discharge. The DD Form 214 he was issued at the time confirms he held the rank/grade PV1/E-1 and he had completed a total of 2 years and 4 days of active military service. He had 275 days of lost time.
9. Item 13 (Decorations, Medals. Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Army Commendation Medal, USA/USAF Presidential Unit Citation, National Defense Service Medal, Iraq Campaign Medal with arrowhead, Global War on Terrorism Service Medal, Army Service Ribbon, Combat Infantryman Badge, Driver and Mechanic Badge with Driver Wheel Vehicle clasp.
10. The applicant submitted a copy of his VA Rating Decision, dated 25 June 2009, showing he received a 10-percent service-connected disability rating for left calcaneal stress fracture with residual plantar fasciitis.
11. On 6 July 2010, the Army Discharge Review Board (ADRB) disapproved the applicant's request for an upgrade of his discharge.
12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate.
13. 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 members 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.
14. Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies an individual from further military service.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that after the applicant received a psychiatric evaluation and there was no evidence of any psychotic process and combat was not a contributing factor. He was cleared for any administrative decision deemed appropriate by his command.
2. The applicant's service record shows he received an Article 15 for going AWOL for a total of 275 days. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.
3. Evidence of record shows the applicant's military record was satisfactory, as evidenced his receipt of numerous awards for service in a combat zone and his promotion to Specialist (E-4) during his period service, but not sufficiently meritorious to warrant an honorable discharge. His record also shows he was reduced to private (E-1) as a result of his Article 15 for being AWOL. These factors most likely contributed to his receiving an under honorable (general) conditions discharge rather than an under other than honorable which is normal for discharges for misconduct.
4. The applicant provides insufficient evidence to show his mental state impaired his ability to serve (or was the cause of his going AWOL), or that he did not receive any required medical attention. Therefore, he is not entitled to a honorable discharge.
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.
_________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.
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