IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100015727 


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.  He also requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his missing awards.

2.  The applicant states he was medically diagnosed with Post Traumatic Stress Disorder (PTSD) with insomnia, mild Traumatic Brain Injury (TBI), depression and anxiety, and many of his actions were the result of these conditions.  He claims his general discharge is unjust based on the fact his medical conditions played a large part in his misconduct, yet were ignored by his chain of command.  He states his discharge should be upgraded based on his three tours of duty in Iraq and his overall honorable service to his country.  He states he is well aware that some actions bear their consequences but he feels he should not be withheld from bettering himself and his family.  The type of discharge he received disables him from the opportunities wishes to seek after serving his country honorably.  He has plans of becoming a police officer and his general discharge prevents him from attaining his long term goals.  

3.  The applicant provides the following documents:

* a self-authored letter
* various medical documents
* his DD Form 214
* a Department of Veterans Affairs (VA) Rating Decision
* a college transcript

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he initially enlisted in the Regular Army and he entered active duty on 12 February 2003.  He was trained in and awarded military occupational specialty (MOS) 42A (Human Resources Specialist).  He reenlisted for 6 years on 4 October 2006.

2.  The record confirms the applicant was promoted to sergeant (SGT)/E-5 on
1 March 2005, and this is the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to specialist (SPC)/E-4 for cause on 15 July 2008, and to private first class (PFC)/E-3 on 14 August 2008.

3.  The record further shows the applicant completed 25 months of service in Iraq during the following three separate deployment periods:

* 11 November 2004 through 1 April 2005
* 22 May 2006 through 11 November 2006
* 2 December 2007-11 November 2008

4.  The applicant’s Enlisted Record Brief (ERB), dated 12 December 2008, shows he earned the following awards during his active duty tenure:

* Army Commendation Medal (ARCOM) 2nd Award
* Army Achievement Medal (AAM) 3rd Award
* Valorous Unit Award (VUA)
* Army Good Conduct Medal (AGCM)
* National Defense Service Medal (NDSM)
* Iraq Campaign Medal (ICM) with 2 bronze service stars
* Global War on Terrorism Service Medal (GWOTSM)
* Global War on Terrorism Expeditionary Medal (GWOTEM)
* Army Service Ribbon
* Overseas Service Ribbon
* Combat Action Badge
* Parachutist Badge
* Driver and Mechanic Badge with W (Driver) Bar
   * Basic Marksmanship Qualification Badge.

5.  The applicant’s disciplinary record includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

	a.  on 27 February 2007, for wrongfully wearing an unauthorized award, dereliction of duty, and making a false statement.  

	b.  on 22 April 2008, for leaving his sentinel post at a forward operating base in Iraq  with the intent to abandon the post; and

	c.  on 14 August 2008, for uttering a document with the intent to defraud.

6.  On 12 September 2008, the applicant underwent a separation physical examination and he was cleared for separation by competent medical authority.  In the DD Form 2807-1 (Report of Medical History) completed by the applicant during his separation medical examination process, he answered “Yes” to item 14c (Currently in Good Health).  The DD Form 2808 (Report of Medical Examination) contains the entry “Normal” in item 40 (Psychiatric) and there is no indication in these forms that the applicant was suffering from a disabling medical condition at the time of his separation medical processing.

7.  A MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated September 2008, shows the following results of the mental status examination completed on the applicant: 

* Behavior - Normal
* Level of Alertness - Fully Alert
* Level of Orientation - Fully Oriented
* Mood and Affect - Unremarkable
* Thinking Process - Clear
* Thought Content - Good

8.  The MEDCOM Form 4038 also indicates the applicant had the mental capacity to understand and participate in the proceedings, and he was mentally responsible.  It further indicated treatment was not deemed necessary; the applicant was judged clinically psychologically stable and not at significant risk for dangerous behavior; and the applicant was psychiatrically cleared for any administrative action deemed appropriate by the commander, to include chapter separation or UCMJ.

9.  On 7 October 2008, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, by reason of misconduct, and informed the applicant he was recommending he receive a general discharge.  The unit commander cited the following actions by the applicant as his reason for initiating the separation action:
	a.  Failure to report on several occasions;

	b.  Dereliction of duty;

	c.  Forgery;

	d.  Leaving his place of duty while posted as a sentinel

	e.  Twice disobeying a lawful order;

	f.  Making a false statement with the intent to deceive; and

	g.  Wrongful wearing of an award.

10.  The applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  The applicant submitted a statement in his own behalf subsequent to counseling in which he admitted to making mistakes and asking for a second chance.  

11.  The separation authority approved the applicant’s separation for misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant receive a general discharge.  On 12 December 2008, the applicant was discharged accordingly.  

12.  The DD Form 214 issued to the applicant upon his discharge contains the entry "See Item 18" in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) and item 18 (Remarks) contains an entry indicating the applicant was separated on temporary records and that a 
DD Form 215 (Correction to DD Form 214) would subsequently be issued to add missing information.

13  The applicant provides a VA Rating Decision, dated 24 August 2009.  This document shows he was granted service-connection for PTSD with insomnia and a disability rating of 50 percent (%) effective 13 December 2008; and for hyperthyroidism with a 10% disability rating.  He was also granted service-connection for hearing loss in the left ear with a 0% disability rating.  A service-connection and disability rating decision for 10 additional conditions, including 
TBI, claimed by the applicant was deferred and service-connection for 4 other claimed conditions was denied.

14.  On 8 May 2009, the Army Discharge Review Board, after consideration of the applicant’s entire record of military service and the issues he presented, 


including the issues he now presents to this Board, determined his discharge was proper and equitable and it unanimously voted to deny his request for an upgrade of his discharge. 

15.  On 12 May 2010, the ADRB notified the applicant that as a result of his missing a scheduled appearance before a travelling panel in Dallas, TX in February 2010 his case was being closed.  The applicant was also informed he had exhausted his appeals with the ADRB and his only remaining option was to apply to this Board.

16.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  

17.  Paragraph 14-3 of this regulation contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

18.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  It states that all awards earned during military service will be entered in item 13 and that the source record for this entry is the ERB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DD Form 214 should be corrected to add all awards he earned has been carefully considered and found to have merit.  The evidence of record contains an ERB listing all of the applicant’s earned awards and it would be appropriate to issue the DD Form 215 referred to in his DD Form 214 that includes these awards.


2.  The applicant’s contention that his general discharge should be upgraded to an honorable discharge based on his overall record of honorable service, including his combat service in Iraq, because his misconduct was in large part due to his diagnosed PTSD and TBI has also been carefully considered.  However, there is insufficient evidence to support this claim. 

3.  The evidence of record includes the applicant’s separation medical examination documents, which indicate he was in good health, by his own admission.  They also show he received a normal psychiatric evaluation.  

4.  The mental status evaluation and separation medical examination documents also fail to show the applicant suffered from any disabling condition at the time of his discharge processing that would have rendered him unfit for further service or warranted his separation processing through medical channels.  As a result, the evidence of record does not support his assertion that his existing medical conditions contributed to the misconduct that led to his discharge.  

5.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

6.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was the basis for him receiving a general discharge instead of an under other than honorable conditions discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, absent evidence that his medical problems rendered him unfit for further service and/or contributed to his misconduct, there is an insufficient evidentiary basis to support an upgrade of his discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 13 of his DD Form 214 the:

* Army Commendation Medal (ARCOM) 2nd Award
* Army Achievement Medal (AAM) 3rd Award
* Valorous Unit Award (VUA)
* Army Good Conduct Medal (AGCM)
* National Defense Service Medal (NDSM)
* Iraq Campaign Medal (ICM) with 2 bronze service stars
* Global War on Terrorism Service Medal (GWOTSM)
* Global War on Terrorism Expeditionary Medal (GWOTEM)
* Army Service Ribbon
* Overseas Service Ribbon
* Combat Action Badge
* Parachutist Badge
* Driver and Mechanic Badge with W (Driver) Bar
   * Basic Marksmanship Qualification Badge.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his discharge.



      ____________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)                                         AR20100015727



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015727



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1