IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100019513 


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, in effect, that his discharge be upgraded to honorable and the narrative reason for separation be changed to medical reasons.

2.  The applicant states, in effect, his discharge should be upgraded to show he was discharged in accordance with chapter 3 of Army Regulation 40-501 (Medical Fitness Standards).  He further states he was extremely mistreated while in the service.

3.  The applicant provides the following evidentiary documents with his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Report of Mental Status Evaluation, dated 28 July 2006
* DA Form 3349 (Physical Profile)
* Electronic Patient Appointment Schedule
* Psychological Evaluation from a private psychologist
* Red Cross message
* Multiple identification cards







CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 June 2006 for a 4-year period of service.  He completed the training requirements and he was awarded military occupational specialty 21B (Combat Engineer).  

2.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) shows the applicant was in an absent without leave (AWOL) status on 13 April 2007.  

3.  On 2 April 2008, a charge sheet was prepared showing the applicant was in an AWOL status since 13 April 2007.  However, the records do not show the charges were ever preferred against him.

4.  It appears the applicant was returned to military control on or about 27 July 2008.  On 28 July 2008, he was medically evaluated and found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  During a mental status evaluation, he was found to be mentally responsible, able to distinguish right from wrong with the ability to adhere to the right, and he met the retention standards as prescribed in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  The psychiatrist did recommend separation under the provisions of paragraph 5-17 of Army Regulation 635-200 because he stated the applicant would unlikely be able to adapt to military life and its stressors.  He diagnosed the applicant as having an adjustment disorder with anxiety, depressed mood and panic attacks.  The applicant was determined not to have a psychiatric disease or defect that would warrant disposition through medical channels. 

5.  On 31 July 2008, in a written statement the applicant indicated he went AWOL due to the recent death of his mother and because he did not take his medication for panic disorder. 

6.  On 4 August 2008, the psychiatrist initiated a temporary physical profile for the applicant profile based on the above diagnoses.  The temporary profile was "S-3" with "S" designated as psychiatric.  This temporary profile had an expiration date of 1 November 2008.  

7.  On 14 August 2008, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 13 April 2007 to on or about 28 July 2008.  



8.  On 22 August 2008, his commander notified him that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The justification for initiating the separation action was his extended period of AWOL from 13 April 2007 to 28 July 2008 for a period of 1 year, 3 months and 15 days.  The applicant acknowledged receipt of the separation notification.

9.  The commander also advised him of his right to be represented by counsel, to submit written statements in his own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  Based on the applicant's time in service and that he was being recommended for a general discharge he was informed he was not entitled to request a hearing before an administrative separation board.

10.  On 26 August 2008, he consulted with counsel and elected not to submit personal statements on his own behalf.  He indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions.  

11.  On 27 August 2008, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense.  The commander recommended that he be issued a general discharge.  In addition, the commander stated the applicant had received an Article 15 under the UCMJ for the aforementioned AWOL offense on 14 August 2008.

12.  On 28 August 2008, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense with a General Discharge Certificate.  

13.  On 3 September 2008, the applicant was accordingly discharged.  He had completed 10 months and 21 days of creditable active service.  

14.  On 26 September 2008, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 8 July 2009, having determined the applicant's discharge was proper and equitable, the ADRB unanimously voted to deny his request.



15.  In support of this application, he provided a psychological evaluation from an examining official in private practice.  The evaluation shows he was evaluated between 15 September 2007 and 1 October 2007 on four occasions.  The applicant was diagnosed as suffering from Panic Disorder without Agoraphobia and recurrent Major Depressive Disorder.  The applicant was identified as having "HAD A HISTORY OF SELF-ABUSIVE BEHAVIORS, SPECIFICALLY CUTTING BEHAVIORS AND TATTOOS TO RELIEVE THE SYMPTOMS OF DEPRESSION SINCE AGE 12, WHEN HIS MOTHER WAS DIAGNOSED WITH (terminal) CANCER."  In addition, a copy of a Red Cross message was provided that notified him his mother had died on 13 November 2006.

16.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL in excess of 30 days is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to the lowest enlisted grade and forfeiture of all pay and allowances.

	d.  Army Regulation 40-501 provides information on medical fitness standards for the induction, enlistment, appointment, retention, separation and retirement of individuals within the Army and its Reserve Components.  Individuals evaluated under the medical fitness standards will be reported as medically acceptable who meet the medical fitness standards established for the particular purpose for which examined.  Paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. 

DISCUSSION AND CONCLUSIONS:

1.  A psychological examination by a military appointed psychiatrist determined the applicant had an adjustment disorder with anxiety, depressed mood, and panic attacks.  The examining psychiatrist did not find a psychiatric disease or defect that would have warranted disposition through medical channels.  In addition, the applicant met retention standards in accordance with Army Regulation 40-501, chapter 3.  However, the examining psychiatrist did state the applicant would likely not adapt to the stressors of a military lifestyle and recommended administrative separation.  

2.  Based on the evidence of record, the applicant's company commander initiated separation action against him for being AWOL for 1 year, 3 months, and 15 days.  This offense is a violation of the UCMJ with the maximum punishment under the Manual for Courts-Martial of a dishonorable discharge, confinement for 12 to 18 months, reduction in grade, and a forfeiture of all pay and allowances.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.

4.  Although a discharge under other than honorable conditions was normally issued to Soldiers discharged by reason of misconduct for commission of a serious offense, the applicant was issued a general discharged.  Therefore, it appears the applicant's personal hardship due to the loss of his mother was taken into consideration by his chain of command.  Considering the known facts of this case, the separation authority was lenient.

5.  The available record does not show the applicant was ever mistreated while he was in the military and the applicant failed to provide any such evidence.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief to upgrade his 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.

ABCMR Record of Proceedings (cont)                                         AR20100019513



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ABCMR Record of Proceedings (cont)                                         AR20100019513



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